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HARVARD LAW LjegABY 




3 2044 078 653 052 



L 




HARVARD LAW LIBRARY 



Received JAN 11 1922 



f~-*r*'^ 



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OFFICIAL EDITION 



REPORTS OF OASES 



*reA»7» jun> DBTBRMUfSD IV THE 



APPELLATE DIVISION 



OF 



SUPREME COURT 



OF THE 



STATE OF NEW YORK. 



AUSTIN B. GRIFFIN, Reporter. 



Volume OXOV, 
1921. 



J. B. LYON COMPANY, 

Albany, N. Y. 



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Entered, aooording to Act of Congress, in the year nineteen bandied and twenty-one. 

By John J. Lyons, Sbcbbtaby or th» Stats or New Tons. 

In trust for the benefit of the People of the said State, in the office of the Librarian of Congress 

at Washington, D. C. 



J. n. LYON COMPANY, 

PRINTERS, BLBOTROTYFBRS AND BTNDBRS, 

LYON BLOCK, ALBANY, N. Y. 



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Justices 



OF 



The Appellate Division op the Supreme Court. 



First Department. 

Hoh. JOHN PROCTOR CLARKE, P. J 

" FRANK C. LAUOHLIN. 

" VICTOR J. DOWLING. 

" WALTER LLOYD SMITH. 

" ALFRED R. PAGE. 

" EDGAR S. K. MERRELL. 

" SAMUEL GREENBAUM. 

Second Department* 

Ho*. ALMET F. JENKS, P. J. 

" ISAAC N. MILLS. 

" ADELBERT P. RICH. 

" HARRINGTON PUTNAM. 

" ABEL E. BLACKMAR. 

" WILLIAM J. KELLY* 

" WALTER H. JAYCOX.* 

Third Department* 

Hov. JOHN M. KELLOGG, P. J. 
" JOHN WOODWARD. 
" AARON V. S. COCHRANE. 
*• HENRY T. KELLOGG. 
" MICHAEL H. KILEY. 
" CHARLES C. VAN KIRK* 

Fourth Department* 

Hon. FREDERICK W. KRUSE, P. J. 
" JOHN S. LAMBERT. 
« PASCAL C. J. DE ANQELIS.t 
" IRVING G. HUBBS. 
" WILLIAM W. CLARK. 
" ROWLAND W. DAVIS4 



'Designated by the Governor to sit temporarily. 

tTerm of office expired on December 31, 1990. 

X Designated by the Governor in the place of Mr. Justice De AngeHs. 



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CAUSES in which the decisions contained in the Appellate 
Division Reports have been passed upon by the Court of 
Appeals. 

Albebti v. Hbtnbman 187 App. Div. 466 

Reversed: 230 N. Y. 586. 
Abliss v. Brenon Film Corporation 188 App. Div. 887 

Reversed: 230 N. Y. 390. 
Ashburneb v. Wyckoff ;. 187 App. Div. 887 

Affirmed: 230 N. Y. 632. 
Bakebman v. City or New York 186 App. Div. 907 

Affirmed: 230 N. Y. 544. 
Berry v. Pulver (2 oases) 183 App. Div. 922 

Affirmed: 230 N. Y. 582. 
Bbsner v. Central Trust Co 189 App. Div. 930 

Affirmed: 230 N. Y. 357. 
Bodbnstein v. Oppenhbim 186 App. Div. 945 

Affirmed: 230 N. Y. 541. 

Boiabdi v. Marden, Orth & Hastings Corporation 194 App. Div. 307 

Appeal dismissed: 230 N. Y. 607. 
Borst v. Vogblstein & Co., Inc 188 App. Div. 605 

Affirmed: 230 N. Y. 573. 
Browning ». Fox 183 App. Div. 778 

Affirmed: 230 N. Y. 535. 
Burt Olnby Canning Co. v. State of New York. . 188 App. Div. 940 

Reversed: 230 N. Y. 351. 
Bystrom ». Villard 188 App. Div. 964 

Affirmed: 230 N. Y. 688. 
Carter v. Gordinbr & Warring Co 194 App. Div. 925 

Affirmed: 230 N. Y. 597. 

Church v. Church 192 App. Div. 947 

Appeal dismissed: 230 N. Y. 591. 
City of Buffalo v. Erie R. R. Co 187 App. Div. 925 

Affirmed: 230 N. Y. 623. 
Cleiolt Realty Co., Inc., v. Wood 194 App. Div. 508 

Affirmed: 230 N. Y. 646. 
CocKCROFT v. Mitchell 187 App. Div. 189 

Affirmed: 230 N. Y. 630. 
Cooney v. Northern Central R. Co 180 App. Div. 675 

Affirmed: 230 N. Y. 550. 
D' Avignon v. Travelers Ins. Co. of Hartford 187 App. Div. 963 

Affirmed: 230 N. Y. 560. 
Dansky v. Staten Island Midland R. Co 186 App. Div. 101 

Affirmed: 230 N. Y. 668. 
Dunbar v. Sweeney 185 App. Div. 947 

Reversed: 230 N. Y. 609. 

v 



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vi CAUSES PASSED UPON 

Egan v. City of Buffalo 188 App. Div. 953 

Affirmed: 230 N. Y. 575. 
810 West End Avenue, Inc., t>. Sterm 194 App. Div. 521 

Reversed: 230 N. Y. 652. 
Elefantb p. Pizitz 182 App. Div. 819 

Affirmed: 230 N. Y. 567. 
Ellis v. Feenbt & Shbehan Building Co 187 App. Div. 481 

Affirmed: 230 N. Y. 565. 
Ellison v. Chapfbll 181 App. Div. 263 

Affirmed: 230 N. Y. 626. 
Epps v. Price 186 App. Div. 920 

A#rroed; 230 N. Y. 542. 

Favbrsham v. Favershau 161 App. Div. 521 

Appeal dismissed: 230 N. Y. 662. 
Fbinstbin v. Massachusetts Bonding A Ins. Co . . . 184 App Div. 233 

Affirmed: 230 N. Y. 621. 
Finkelday v. Heide, Inc 193 App. Div. 338 

Affirmed: 230 N. Y. 598. 
Finnbgan v. Buck 195 App. Div. 923 

Reversed: 230 N. Y. 512. 
461 Eighth Avenue Co., Inc., v. Childs Co 181 App. Div. 742 

Reversed: 230 N. Y. 615. 
Fried v. New York, New Haven & Hartford R. R. 
Co 183 App. Div. 115 

Affirmed: 230 AT. 7. 619. 
Furniss 9. Cruikshank 191 App. Div. 450 

Modified: 230 N. Y. 495. 
Gallin v. Allemannia Fire Ins. Co 184 App. Div. 876 

Affirmed: 230 AT. 7. 547. 
Garrib o. Howell 184 App. Div. 876 

Affirmed: 230 N. Y. 609. 
Gattovi t>. New York Central R. R. Co 192 App. Div. 927 

Affirmed: 230 N. Y. 594. 
Goldfish v. Goldfish 193 App. Div. 686 

Affirmed: 230 N. Y. 606. 

GOLDSGHMIDT & LoBWBNICK, INC., V. DIAMOND STATB 

Fibre Co 186 App. Div. 688 

Appeal dismissed: 230 N. Y. 621. 
Goldstein v. Union R. Co. of New York City. . . . 180 App. Div. 417 

Affirmed: 230 N. Y. 570. 
Gorlb v. Joy Co 194 App. Div. 945 

Affirmed: 230 N. Y. 595. 
Gould v. Flbitmann 188 App. Div. 759 

Affirmed: 230 N. Y. 569. 
Green v. New York Central A H. R. R. R. Co 188 App. Div. 996 

Affirmed: 230 N. Y. 583. 
Guttag v. Shatzkin 194 App. Div. 509 

Reversed: 280 N. F. 647. 



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BY THE COUET OF APPEALS. vii 

Hanna v. Stbdman 185 App. Div. 491 

Reversed: 230 N. Y. 326. 
Habjons *. Sizer Foegb Co 185 App. Div. 903 

Affirmed: 230 N. Y. 564. 
Hahbis v. Shorall 188 App. Div. 330 

Reversed: 230 N. Y. 343. 
Hausneb v. Wicxham 186 App. Div. 931 

Affirmed: 230 N. Y. 578. 
Hues v. Donneb Steel Co 191 App. Div. 667 

Affirmed: 230 At Y. 596. 
Hocking Valley R. Co. v. Barbour 192 App. Div. 654 

Affirmed: 230 N. Y. 599. 
Holbbook I?. Holbbook 193 App. Div. 286 

Affirmed: 230 N. Y. 600. 
HofiPEBS v. Smith Co 194 App. Div. 945 

Affirmed: 230 N. Y. 616. 
Josbphi v. Creston Co 188 App. Div. 97 

Affirmed: 230 N. Y. 549. 

L'Hommedobu v. Cook 193 App. Div. 909 

Appeal dismissed: 230 N. Y. 659. 
Lapidus r. Canno 180 App. Div. 13 

Affirmed: 230 N. Y. 531. 
Lee v. Cbanford Co., Inc 182 App. Div. 191 

Affirmed: 230 N. Y. 618. 
Legniti v. Mechanics A Metals Nat. Bane 186 App. Div. 105 

Reversed: 230 N. Y. 415. 
Levy Leasing Co., Inc., v. Siegel 194 App. Div. 482 

Affirmed: 230 N. Y. 634. 
LiNDSTBOM v. New Tobk Central R. R. Co 186 App. Div. 429 

Affirmed: 230 N. Y. 551. 
Ltjndquist v. Lundquist 184 App. Div. 949 

Affirmed: 230 N. Y. 537. 
Lyman i>. Putnam Coal A Ice Co., Inc 182 App. Div. 705 

Affirmed: 230 N. Y. 548. 
Matter of Barker (Belden) 186 App. Div. 317 

Modified: 230 N. Y. 364. 
Matter of Bronx Parkway Commission (Farley) . . 192 App. Div. 412 
• Affirmed: 230 N. Y. 607. 

Matter of Brown 178 App. Div. 558; 

193 id. 941 
Appeals dismissed: 230 N. Y. 661. 
Matter of Crane v. Craig 193 App. Div. 791 

Modified: 230 N. Y. 452. 
Matter of Emerson v. Buck 194 App. Div. 81 

Reversed: 230 AT. 7. 380. 
Matter, of Heidemann v. American District Tel. 
Co 193 App. Div. 402 

Reversed: 230 N. Y. 305. 



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viii CAUSES PASSED UPON 

Matter of Hubbs v. Addison Electric Light & 
Power Co 191 App. Div. 765 

Affirmed: 230 N. Y. 303. 
Matter or Jordan p. Decorative Co 194 App. Div. 927 

Reversed: 230 N. Y. 522. 
Matter of Kingsbury 192 App. Div. 206 

Affirmed: 230 N. Y. 680. 
Matter of Eolpien v. O'Donnell Lumber Co 191 App. Div. 764 

Reversed: 230 N. Y. 301. 
Matter of McDowell 193 App. Div. 914 

Modified: 230 N. Y. 601. 
Matter of Pardee v. Rayfield 192 App. Div. 5 

Affirmed: 230 N. Y. 543. 
Matter of Schmoll 191 App. Div. 435 

Affirmed: 230 N. Y. 559. 
Matter of Schultz v. Champion Welding & Mfg. 
Co 194 App. Div. 925 

Reversed: 230 N. Y. 309. 
Matter of Skouitchi v. Chic Cloak & Suit Co.. . . 192 App. Div. 768 

Modified: 230 N. Y. 296. 

Matter of State Commission of Prisons 193 App. Div. 903 

Appeal dismissed: 230 N. Y. 558. 
Matter of Taylor 191 App. Div 900 

Affirmed: 230 N. Y. 556. » 
Matter of Tessier 193 App. Div. 916 

Affirmed: 230 N. Y. 660. 
Matter of Wbrlich 190 App. Div. 353 

Reversed: 230 N. Y. 516. 
McNeil v. Cobb 186 App. Div. 177 

Affirmed: 230 N. Y. 536. 
Merry Realty Co. v. Shamokin & Hollis Real 
Estate Co 186 App. Div. 538 

Reversed: 230 N. Y. 316. 
Metropolitan Life Ins. Co. v. Childs Co 183 App. Div. 230 

Reversed: 230 N. Y. 285. 
Miesto v. Commercial Union Assurance Co., Ltd., 

of London, England 182 App. Div. 922 

Appeal dismissed: 230 N. Y. 625. 
Montgomery Bank & Trust Co. v. Jones 182 App. Div. 252 

Affirmed: 230 N. Y. 580. 
National Surety Co. v. Manhattan Mortgage Co. . 185 App. Div. 733 

Affirmed: 230 N. Y. 545. 

Newman v. Walton 188 App. Div. 959 

Appeal dismissed: 230 N. Y. 581. 
O'Connor v. Qraff 186 App. Div. 116 

Affirmed: 230 N. Y. 552. 
People v. Atlas 183 App. Div. 595 

Affirmed: 230 N. Y. 629. 



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BY THE COURT OF APPEALS. ix 

People t>. Clayton 186 App. Div. 887 

Appeal dismissed: 230 N. Y. 589. 
People ». Cooper 191 App. Div. 903 

Affirmed: 230 N. Y. 577. 
People v. Fifth Avenue Coach Co 184 App. Div. 936 

Affirmed: 230 N. Y. 628. 
People v. Hamilton 183 App. Div. 55 

Affirmed: 230 N. Y. 577. 
People v. McEinlby Realty & Construction Co.. 182 App. Div. 773 

Affirmed: 230 N. Y. 633. 

People v. Ramos 190 App. Div. 902 

Appeal dismissed: 230 N. Y. 592. 
People v. Sloans 193 App. Div. 910 

Affirmed: 230 N. Y. 529. 
People v. Syrop 189 App. Div. 912 

Affirmed: 230 N. Y. 620. 
People r. Title Guarantee & Trust Co 191 App. Div. 165 

Affirmed: 230 N. Y. 578. 
People ex rel. Ballin v. O'Connell 194 App. Div. 540 

Affirmed: 230 N. Y. 655. 
People ex rel. Brixton Operating Corp. t>. LaFetra. . 194 App. Div. 523 

Affirmed: 230 N. Y. 429. 
People ex rel. Brooklyn City R. R. Co. v. Nixon. . 193 App. Div. 746 

Affirmed: 230 N. Y. 614. 
People ex rel. Cassidy v. Lawes 193 App. Div. 931 

Affirmed: 230 N. Y. 553. 
People ex rel. Cock croft v. Miller 193 App. Div. 942 

Affirmed: 230 N. Y. 604. 
People ex rel. Delanby v. Interborough Rapid 

Transit Co 192 App. Div. 450 

Appeal dismissed: 230 N. Y. 558. 
People ex rel. Dickerman v. Sutton 189 App. Div. 918 

Reversed: 230 N. Y. 617. 
People ex rel. Durham Realty Corp. v. LaFetra. . 195 App. Div. 280 

Affirmed: 230 AT. Y. 429. 
People ex rel. Facey v. Leo 193 App. Div. 910 

Affirmed: 230 N. Y. 602. 
People ex rel. H. D. H. Realty Corporation v. 

Murphy 194 App. Div. 530 

Affirmed: 230 N. Y. 654. 
People ex rel. Hofeller v. Buck 193 App. Div. 262 

Affirmed: 230 N. Y. 608. 
People ex rel. New Tore Edison Co. v. Public 
Service Comm., First Dist 191 App. Div. 237 

Affirmed: 230 N. 7. 574. 
People bx bel. New York, Westchester & Boston 
R Co, v. Public Service Comm., First Dist 193 App. Div. 445 

Affirmed: 230 N. Y. 604. 



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x CAUSES PASSED UPON 

People ex eel. 176 West 87th St. Corporation v. 
Cantob 191 App. Div. 946 

Modified: 230 N. Y. 312. 
People ex eel. Ratland Realty Co. v. Fagan 194 App. Div. 185 

Affirmed: 230 N. Y. 653. 
People ex rbl. Societb Anonyms Deb Anciens 
Establissmbnts, C. & E. Chapel Fbbbss & Cib v. 
Knapp 191 App. Div. 701 

Affirmed: 230 N. Y. 557. 
People ex rbl. Ward v. Sutton 189 App. Div. 919 

Reversed: 230 N. Y. 339. 
Peterson v. New York Consolidated R. R. Co 186 App. Div. 965 

Affirmed: 230 N. Y. 566. 
Post & McCobd, Inc., v. New Tobk Municipal Rail- 
way Cobporation 187 App. Div. 167 

Affirmed: 230 N. Y. 540. 
Prescott ». O'Donohub 188 App. Div. 958 

Affirmed: 230 N. Y. 613. 
Raymond v. Hartfobd Fire Ins. Co 188 App. Div. 881 

Affirmed: 230 N. Y. 562. 

Reads v. Halpin 193 App. Div. 566 

Appeal dismissed: 230 N. Y. 588. 
Rider ». Preferred Accident Ins. Co 193 App. Div. 42 

Affirmed: 230 N. Y. 530. 
Sabatelli v. Db Robbrtis*. 192 App. Div. 873 

Affirmed: 230 N. Y. 592. 
Scha8bl v. International R. Co 185 App. Div. 194 

Affirmed: 230 N. Y. 538. 
Scheurer v. Ebijng Brewing Co 186 App. Div. 968 

Affirmed: 230 AT. F. 584. 
Seader v. Zito 186 App. Div. 400 

Affirmed: 230 N. Y. 587. 
Sherman v. Richmond Hose Co 186 App. Div. 417 

Affirmed: 230 N. Y. 462. 
Shilman v. Shilm an 188 App. Div. 908 

Affirmed: 230 N. Y. 554. 
Siegel v. Huebshman 187 App. Div. 548 

Affirmed: 230 AT. Y. 571. 

Skinner v. Home Bank qf Brooklyn 190 App. Div. 187 

Affirmed {sub nam. Skinner v. SitUwan): 230 N. Y. 631. 
Smith v. Milleb 180 App. Div. 915 

Affirmed: 230 N. Y. 565. 
Sotsky v. 48th Street Co 187 App. Div. 930 

Affirmed: 230 N. Y. 576. 
Stetler p. McFarlanb 181 App. Div. 957 

Reversed: 230 AT. Y. 401. 
Studnbb v. H. & N. Carburetor Co., Inc 185 App. Div. 131 

Affirmed: 230 N. Y. 534. 



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BY THE COURT OF APPEALS. 3d 

Sudbb v. Erib R. R. Co 187 App. Div. 022 

Affirmed: 290 N. Y. 561. 
Swbbnbt v. City of Nbw Yoek 187 App. Div. 935 

Affirmed: 230 AT. Y. 539. 
Sybacubs Malleable Iron Works v. Travelers Ins. 
Co '. 182 App. Div. 742 

Affirmed: 230 AT. 7. 532. 
Taggabtb Papbr Co. v. Statu of Nbw York 187 App. Div. 843 

Affirmed: 230 AT. Y. 622. 
Tobias t>. Lbwis 182 App. Div. 598 

Affirmed: 230 N. Y. 571. 
Tbi-Bxjixion Smelting & Development Co. i>. 
Corliss 186 App. Div. 613 

Affirmed: 230 N. Y. 629. 
Ullmann v. Long Island R. R. Co 186 App. Div. 892 

Affirmed: 230 N. Y. 549. 
Vbbmbulb v. City of Corning 186 App. Div. 206 

Affirmed: 230 N. Y. 585. 
Victory Contracting Corporation v. Trotta 187 App. Div. 898 

Affirmed: 230 N. Y. 562. 
Wbldbn v. Frankfort Gbnbral Ins. Co 184 App. Div. 795 

Reversed: 230 N. Y. 546. 
Wbrnbr v. City of Nbw York 189 App. Div. 910 

Affirmed: 230 N. Y. 632. 
Wildenberqer v. Ridge wood Nat. Bank 187 App. Div. 320 

Reversed: 230 N. F. 425. 
Yodajos v. Smith & Sons Carpet Co 193 App. Div. 150 

Affirmed: 230 N. Y. 593. 

Zcnkb v. Hifkins 193 App. Div. 913 

Appeal dismissed: 230 N. Y. 555. 



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A TABLE 



OVTHX 



NAMES OF THE CASES REPORTED 



IN THIS VOLUME. 



A. paob. 

A. & B. Export & Import Cor- 
poration v. Franoo-Amerioan 

Chemical Co., Ino 938 

Abrams v. Rosenberg 036 

Abram8, Susquehanna Silk Mills 

v 933 

Achille Starace & Co., Inc., v. 

Raporel S. S. Line, Ino 941 

Acme Wood Carpet Flooring Co. 

v. Hines 884 

Adams Express Co., Booth Co. v. 37 
AdinoM v. Garfield National 

Bank 939 

Agnes v. Destinn 936 

Agrow v. Johnston 892 

Ajello, Fromm v 906 

Akin, People ex rel. Hicks v 918 

Akron Tire Co. of Delaware, 

Silver v 896 

Aldrich v. Great American Ins. 

Co 174 

Alexander & Co., Inc., Bellas 

Hess & Co., Inc., v 313 

Allen, Amberg v 901 

Allen v. Hines 923 

Alliance Electric Co., Matter of 

Donovan v 678 

Allied Silk Manufacturers, Inc., 

v. Erstein 366 

Alonzo v. Elbert & Co., Ino 895 

Alpern, Kornblum v 899 

Alterman v. Home Ins. Co 151 

Altman & Co., Gumbel v 935 



PAGB. 

Amann v. St. Paul Fire & Marine 
Ins. Co 937 

Amberg v. Allen 901 

American Condenser & Engi- 
neering Corporation, Howden 
& Co. of America, Inc., v 882 

American Elevator Co., Dowling 
v 898 

American LaFranoe Fire Engine 
Co., Inc., v. Savage Arms 
Corporation 950 

American National Bank of 
Wausau v. Butler 895 

American Railway Express Co., 
Conoboy v 901 

American Railway Express Co., 
Weinberger v 888 

American Steel Export Co., 
Pierson & Co. v 934 

American Synthetic Dyes, Inc., 
McKellar v 896, 943 

American Trust Co. v. Manley . . 811 

American Woolen Co. v. State 
of New York 698 

Andersen & Co., Inc., Susque- 
hanna Steamship Co., Inc., v. 161 

Andrews, Kupelian v 921 

Andron v. Funk 886 

Angelo, Matter of 888 

Anglo-Saxon Trading Corpora- 
tion, Chipman, Ltd., .v 936 

Anthus, Matter of, v. Rail Joint 

Co 917 

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XIV 



TABLE OF CASES REPORTED. 



PAoa 
Appell, Fruendlioh & Malter Co., 

Inc., v 987 

Appleby, Roche v. (2 oases) . . 932 

Aprile, Turner-Looker Co. v 706 

Archbishop & Consistory of 
Russian Orthodox Greek Cath- 
olic Church, Eedrovsky v... 127 
Arohbold Forwarders, Inc., Mat- 
ter of Passina v 961 

Archer v. New York Transfer 

Co. 891 

Aresoni v. Ullrey 893 

Ashley, Complaint of (People v. 

Greenagle) 922 

Asinof & Sons, Inc., v. Freuden- 

thal 79 

Asserson v. City of New York.. . 12 
Astoria Cognac & liquor Recti- 
fying Co., Inc., Gordon v 894 

Atlantic Basin Iron Works, Inc., 

Matter of Brady v 951 

Atlantic Coast Line R. R. Co., 

Burke v. (Nos. 1, 2) 883 

Atlantic Coast line R. R. Ca, 

Corliesv 883 

Atlantic Fruit Co., New York 

Fruit Market v 952 

Atlantic Woolen Mills, Inc., 

Boiko & Co., Inc., v 207 

Auditore & Co., Inc., Maryland 

Casualty Co. v 886 

Auerbaoh, Steinhardter v 893 

Aufierov. Terminal & Town Taxi 

Corporation 940 

Auspitz, Berthel v 885 

Austin v. Klein 887 

Automobile Mechanics Corpora- 
tion, Herz v. (2 oases) 931 

Avedon & Co., Inc., Stern & 
Co. v 886 

B. 

B. G. H. Metal Mfg. Co., Inc., 

v.McVoy 923 

B.N.Y. Realty Co., O'Brien v.. 944 

Babcock (In re Lang) 902 

Babcock, Raub v 920 



Babcock Co.. Inc., Land Value 

Refunding Co., Inc., v 

Baoheff, Udoviohky v 

Bachman, Scandinavian Import- 
Export Co., Inc., v 297 

Baker v. Conway 913 

Baker, Matter of 901, 904 

Baker v. Welcome 913 

Balducei, Matter of, v. Rakov. . 52 

Baldwin, Goldsmith v 895 

Balmat, McLear v 918 

Banks, Tarbell v 918 

Barnes v. Hilton 891 

Barnett v. Barnett 888 

Barnett, Inc., Bulova v 941 

Barrett, Bessel v 901 

Bay Ridge Theatre Corporation, 

Rogers v 889 

Bayer v. Riley 884 

Baylies v. Baylies 943 

Baylis, Davis Bros. Realty Cor- 
poration, Inc., v 403 

Beach v. Beach 888 

Beauley, Grosvenor v 939 

Bebaok v. Spaulding 919 

Becker v. McVay 922 

Beckers, Ross v 914 

Bookman, Complaint of (Coler 

v. Wostein) 933 

Bedford Cleaning & Dyeing Ca, 

Inc., Gluck v 493 

Beeman, Matter of, v. Board of 

Education of Penn Yan 357 

Beers v. Plant 933 

Bellack, Herbst v 928 

Bellas Hess & Co., Inc., v. 

Alexander & Co., Inc 313 

Bennet v. Herx & Eddy, Inc 891 

Bennett, Matter of 904 

Berman v. Bernstein 930 

Bernhard v. Cohen 932 

Bernstein, Berman v 930 

Bernstein, Stanger v 936 

Berthel v. Auspitz 885 

Berube v. Castle 901 

Bessel v. Barrett 901 

Beyer, Brockman v 936 



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TABLE OF CASES REPORTED. 



xv 



Biery Lumber Co., Sunrise Lum- 
ber Co., Inc., v 170 

Billboard Publishing Co., De 

Veaux v 890 

Binghamton Light, Heat & 
Power Co., Matter of Whitte*- 

more v 917 

Birns Express, Inc., Hogan v. . . 930 
Bisehoff v. Transatlantic Trust 

Co 937 

Bixby, Matter of, v. Cotswold 

Comfortable Co 659 

Black & White Cab Co., Brad- 
ford v 930 

Black & White & Town Taxis, 

Inc., Matter of Mahoney v. . . 951 
Blake v. Thomas & Buckley 

Hoisting Co 931 

Blanche Realty Co., Brown v. . . 87 

Blankenhorn, Boyle v 265 

Blinderman & Cohen Amuse- 
ment Co., Inc., Samwiok v. . . 884 
894,896, 938 

Bliss Co., Towne v 908 

Block v. Block 936 

Blood, Jensen v 920 

Bloomingdale, Teplitz v 15 

Board of Education of Penn Tan, 

Matter of Beeman v 357 

Board of Water Supply of City of 
New York, Matter of (Buck 

—Parcel No. 7) 915 

Bobbs-Merrill Co., Sanger & 

Jordan v 892 

Bobrick, Mackenzie v 892 

Boghosian v. Davis 923 

Boiko & Co., Inc., v. Atlantic 

Woolen Mills, Ino 207 

Bonwit, Teller & Co. v. Hosford. 929 
Booth Co. v. Adams Express Co. 37 

Borden, Melnick v 895 

Borrelli v. Garland. (2 oases) . . 888 

Bossom, Matter of 339 

Boulevard Theatre & Realty Co., 

Matter of 518 

Bowers, Matter of 548 

Bowman, Orange v. . . 942 



PAOl. 

Bowman Automobile Co., Frank 

v 377 

Boyle v. Blankenhorn 265 

Brackenridge, Monowitz v 929 

Bradford v. Black & White Cab 

Co 930 

Brady v. Erlanger 934 

Brady, Matter of 895 

Brady, Matter of, v. Atlantic 

Basin Iron Works, Ino 951 

Brady, Matter of, v. Holbrook, 

Cabot & Rollins Corporation. 74 

Braman v. Kreinik 884 

Brandorff v. Rodgers & Hagerty, 

Inc 396 

Brandriss, Fein v 902 

Breokenridge v. Cary 156 

Breitung, Turnure v 200 

Brennan, People v 885 

Brennan v. Van Praag 884 

Brescia Construction Co. v. Stone 

Masons Contractors' Assn 647 

Breuer v. Salvin 901 

Brightson v. Claflin 929 

Brill, Warner v 64 

Brittelli v. Comito. (2 oases) . . 904 
Broadway-John Street Corpora- 
tion, Huyler's v 410 

Brobst, Matter of 884, 894, 896 

Brookman v. Beyer 936 

Brodsky v. Rieser 557 

Bronx Gas & Electric Co. v. 

Public Service Comm., First 

Dist 554, 931 

Brooklyn Borough Gas Co., 

Morrellv. (No. 1) 1, 905 

Brooklyn Borough Gas Co., 

Morrell v. (Nos. 2, 3) . ... 899, 906 
Brooklyn City R. R. Co., Gray 

v 944 

Brooklyn City R. R. Co., People 

ex rel., v. Nixon 887 

Brooklyn Trust Co., Wolf son v.. 934 
Brown v. Blanche Realty Co. . . 87 
Brown v. Cleveland Trust Co. . . 465 

Brown v. Gardner 915 

Brown, Knight v 950 



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by Google 



XVI 



TABLE OF CASES REPORTED. 



FAQS. 

Brown, United States Title 

Guaranty Co. v 738 

Brown, Matter of, v. Mulliken. . 907 

Browne, Dunn v 901 

Browne v. Prudden-Winslow Co. 419 
Brundage, People ez rel. Hafle v. 745 

Brunnett, Wood v 923 

Bryce, Meyers v 934 

Buck, Finnegan v 923, 924 

Buck — Parcel No. 7 (In re Bd. 
of Water Supply of City of 

New York) 915 

Budraoco v. National Surety Co. 909 

Buffalo, City of, Matter of Grade 

Crossing Comrs. (Buffalo 

Veneer Co.) (Proc. No. 110) . . 919 

Buffalo, City of, People ez rel. 

New York, Lackawanna & 

Western R. Co. v 389 

Buffalo Union Furnace Co., Mat- 
ter of Klotz v 916 

Buffalo Veneer Co. (In re Grade 
Crossing Comrs. of City of 

Buffalo) (Proc. No. 110) 919 

Bulova v. Barnett, Ino 941 

Bulova v. S. S. Corporation 886 

Burke v. Atlantic Coast Line R. 

R. Co. (Nos. 1,2) 883 

Burlington Textile Co., Herr- 
mann v 932 

Burns, People v 923 

Buschman v. Busohman 894 

Bush, Beach & Gent, Inc., v. 

Gustafson 936 

Butler, American National Bank 

of Wausau v 895 

Buxbaum, Friedman v 937 

c. 

Caballero, Hagenaers v 580 

Caldwell, Matter of 890 

Callan Bros., Inc., Lucey v 940 

Callananv. State of New York.. 944 

Callen, Mintz v 938 

Calletti, People v 937 

Calvin Realty Corporation, Hur- 

witz v 416 



PAOl. 

Canham v. Commonwealth Fi- 
nance Corporation 881 

Cantor, People ex rel. Marloew 
Amusement Co. v. (Taxes of 
1918) 133 

Cantor, People ex rel. Morewood 
Realty Holding Co. v 190 

Cantor, People ex rel. National 
Park Bank v. (Taxes of 1919). 890 

Cantor, People ex rel. Post & 
McCord, Inc., v 895 

Capron, Van Pelt v 909 

Caravel Co., Inc., Meyersohn v. 899 

Carroll v. Gimbel Bros., New 
York 444 

Carvel Court Realty Co., Inc., 
v.Jonas 662 

Cary, Breckenridge v 156 

Cast-a-Liner Co., Guggenbuehler 
v 884 

Castle, Berube v 901 

Castor, Matter of, v. Collegiate 
Baptist Church of the Cove- 
nant 914 

Castriotis, Franken-Karch Cor- 
poration v 529 

Catalana de Gas y Electricidad, 
S. A., Moody Engineering Co., 
Inc., v 940 

Central Sugar Co. v. Lamborn . . 904 

909 

Central Trust Co. of New York 
v. Pittsburgh, Shawmut & 
Northern R. R. Co 922 

Champlain Silk Mills, Matter of 
Taftv 917 

Chard v. Ryan-Parker Construc- 
tion Co 929 

Chartrand v. Proctor. (2 cases). 888 

Chasin, Matter of Guiliana v 913 

Chile Exploration Co., Matter of 
Newham v 291 

Chipman Chemical & Engineer- 
ing Co., Inc., Hooker Electro- 
chemical Co. v 890 

Chipman, Ltd.,. v. Anglo-Saxon 
Trading Corporation 936 



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TABLE OF OASES BEPOETED. 



xvii 



FACM. 

Ciriello, Matter of, v. Great 
Lakes Dredge & Dock Co. . . 913 

City of Buffalo, Grade Crossing 
Comrs., Matter of (Buffalo 
Veneer Co.) (Proc. No. 110) . . 919 

City of Buffalo, People ex rel. 
New York, Lackawanna & 
Western R. Co. v 389 

City of Hudson, Commission of 
Public Works, Levine v 351 

City of Mechanioville, Rice v. . . 268 

City of New York, Asserson v. . . 12 

City of New York v. Consoli- 
dated Telegraph & Electrical 
Subway Co 935 

City of New York, Guzzi v 891 

City of New York, King, Rice 
& Ganey Co. v 938 

City of New York.Molinov.... 496 

City of New York, National City 
Bank of Brooklyn v 905 

City of New York, Schleicher 
v 908 

City of New York v. Steen, Inc. 
(Nos.1, 2) 898 

City of New York, Wanamaker, 
Inc., v 940 

City of New York, Wegmann v . . 540 

City of New York, Bd. of Water 
Supply, Matter of (Buck — 
Parcel No. 7) 915 

City of New York, Comr. of Pub- 
lic Charities (Complaint of 
Beckman), v. Wostein 933 

City of New York, Comr. of Pub- 
lic Charities (Complaint of 
Cordes), v. Milau 898 

City of New York, Comr. of Pub- 
lic Charities (Complaint of 
Steinman), v. Tully 930 

City of New York, People ex rel. 
(Complaint of Morris) , v. Mor- 
ris 944 

City of Yonkers, Leonhardt v . . 234 

City of Yonkers, Valley Farms 
Co. v 943 

App. Div.— Vol. CXCV, 



PAOI. 

City Prison, Kings County, 
Warden of, People ex rel. Spaet 

v 908 

Claflin, Brightson v 929 

Claflins, Inc., Martin v 883 

Clark, Inc., Rosenstein v 944 

Cleghorn, Stockfleth v 908 

Clements, Hendricks v 144 

Cleveland. Trust Co., Brown v. . 465 
Coakley, People ex rel. Econo- 

mous v 919 

Cochran, First Nat. Bank of 

Mission v 895 

Cochrane v. New York Life Ins. 

Co 931 

Coco v. Jordan 921 

Coe (Mahler v. Kraemer) 907 

Coe-Stapley Mfg. Corporation, 

Metzger v 664 

Cohen, Bernhard v 932 

Cohen, Meyers v 941 

Cohen, Inc., Conti v 932 

Cohn, Mattle v 933 

Cohn, Posner v 373 

Cole v. International R. Co. 

(2 cases) 921 

Coler (Complaint of Beckman) 

v. Wostein 933 

Collegiate Baptist Church of the 

Covenant, Matter of Castor v. 914 
Columbia Kid Leather Mfg. Co., 

Inc., Griffel v 884 

Comito, Brittelli v. (2 cases) . . 904 
Commission of Public Works of 

City of Hudson, Levine v . . . . 351 
Commissioner of Public Chari- 
ties, City of New York (Com- 
plaint of Beckman), v. Wostein. 933 
Commissioner of Public Chari- 
ties, City of New York (Com- 
plaint of Cordes), v. Milau 898 

Commissioner of Public Chari- 
ties, City of New York (Com- 
plaint of Steinman), v. Tully . . 930 
Commonwealth Finance Corpo- 
ration, Canham v 881 

ii 



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XVU1 



TABLE OF CASES REPORTED. 



PAG!. 

Commonwealth Finance Corpo- 
ration, McHarg v 862 

Conderman v. Nephew 923 

Conklin, Transcontinental Engi- 
neering Corporation v 943 

Conlon v. Kelly 892 

Cordon v. Union Dime Savings 

Bank 509 

Conoboy v. American Railway 

Express Co 901 

Consolidated Tea Co., Tadwin 

v :. 938 

Consolidated Telegraph & Elec- 
trical Subway Co., City of 

New York v 936 

Conti v. Cohen, Inc 932 

Continental Folding Paper Box 

Co., O'Meara Co. v. . . 930 

Conway, Baker v 913 

Cook, Weigel v 919 

Cordes, Complaint of (Comr. of 
Public Charities, City of New 

York, v. Milau) 898 

Corlies v. Atlantic Coast Line 

R. R. Co 883 

Cornwall v. Sanford 922 

Cotswold Comfortable Co., Mat- 
ter of Bixby v 659 

Craig, Matter of Devoy v 916 

Craig, People ex rel. Manley v . . 859 

Craig, People ex rel. Rand v 850 

Craig, People ex rel. Smyth v. . 857 

Cr^nford Co., Zundt v 900 

Crompton Building Corporation, 

Finkenberg, Inc., v 20 

Croner, Yorkville Motor Co., 

Inc., v 895 

Cronk, People ex rel., v. Maxim. 952 
Crucible Steel Co., Matter of 

Delsov 288 

Culhane v. Economical Garage, 

Inc 108 

Culross (In re Hall) 922 

Curth & Sons, Matter of Mc- 

Nulty v 914 

Cuyler Realty Co. v. Teneo Co., 
Inc 886 



D. FJM. 

Daly v.Webb 891, 942 

Darano, People v 885 

Davis, Boghosian v 923 

Davis v. Davis 430 

Davis, Friedman v 902 

Davis, Friedman v. (2 oases) . . 935 

Davis, Weissman v 888 

Davis Bros. Realty Corporation, 

Inc., v. Baylis 403 

Davis Bros. Realty Corporation, 

Inc., v. Harte 403 

De Bower v. De Bower 937 

De Veaux v. Billboard Publishing 

Co 890 

Debski, Oleck v 887, 892 

Degnan, Sykes v 939 

Deitel v. Grossman 898 

Del Piatta v. Mendoza 833 

Delmonico's, Matter of Mooney 

v 913, 916 

Delso, Matter of, v. Crucible 

Steel Co 288 

Denison, Mastrangelo v 922 

Denny, Krueger v 943 

Destinn, Agnes v 936 

Devoy, Matter of, v. Craig 916 

Di Angelo v. Wilke 887 

Di Menna & De Paolo, Inc., v. 

Sylvester 939 

Dickey, Matter of 905 

Dildine, Loomis v 903 

Dilg, Matter of, v. Pyrene Mfg. 

Co 916 

Director-General of Railroads, 

Wise v 889 

Dock Contractor Co., Muldoon 

v 894 

Dockendorff & Co., Inc., Sim- 
mons & Co., Inc., v 933 

Dodge Publishing Co., Municipal 

Mortgage Co. v 941 

Domb v. Domb 526, 887 

Domkowski, Matter of 922 

Donnelly v. Morris 913 

Donovan, Matter of, v. Alliance 

Electric Co 678 

Dorf, Korostoff v 889 



Digitized 



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TABLE OP CASES REPORTED. 



xix 



PAQl. 

Dorff v. Taya 886 

Dorfman, Matter of Ledenon v. 613 

Dorfman v. Stoff 030 

Dorsen v. Sullivan 941 

Dowling v. American Elevator 

Co 898 

Doyle, Matter of (O'Connor). . . 733 
Drake v. National Motor Gar & 

Vehicle Corporation 113 

DreyfuBs Costume .Corporation, 

Primrose Dress Co., Inc., v. . . 941 

Driscoll v. Driscoll 897 

Drobner v. Peters 942 

Drubin, Meyer v 937 

Du Val, Schmid v 937 

Duane Shoe Co., Stockamore 

Leather Co. v 947 

Duboff v. Haslan 117 

Dunn v. Browne 901 

Dunn, Iittleneld-Shepperd Co., 

Inc., v. 896, 942 

Dunn v. Moore 883 

Dunne, People ex rel. Wiesenthal 

v 225 

Durham Realty Corporation, 

People ex rel., v. Le Petra 280 

E. 

Early, Matter of 889, 934 

Eaton, Gooch v 920 

Eckert v. Presler 950 

Eckhart & Co., Pierce v 914 

Economical Garage, Inc., Cul- 

hane v 108 

Economous, People ex reL, v. 

Coakley 919 

Edgar v. Halpin 941 

Edmonds v. McDermott 950 

Edwards v. Edwards. 942 

Ehrenberg Brass Mfg. Co., Mat- 
ter of Weinberg v 915 

Ehrich v. Guaranty Trust Co. of 

New York 942 

Eighth Avenue R. R. Co., James 

v 895 

Einstein v. Einstein 939 

Elbert & Co., Inc., Alonzo v 895 



PAQl. 

Elderfields Reservation, Inc., 

Hoisting Machinery Co. v 893 

Ellis v. Garfield Real Estate Co. 921 

Ellis, Matter of Kousoh v 914 

Elmont Cemetery, Inc., Matter 

of Feldman v 916 

Embury, Taylor v 633 

Emmerman & Baumoehl Co., 

Weiser v 940 

Empire Development Co. v. 

Title Guarantee & Trust Co. . 894 
Empire Square Realty Co., 

Gerard v 244 

Enright, People ex rel. Szerlip v. 900 
Equitable Trust Co. v. Keene. . 384 
Erb v. Petroleum Corporation 

of America 893 

Erickson v. Macy 922 

Erlanger, Brady v 934 

Erstein, Allied Silk Manufac- 
turers, Inc., v 366 

Ertel, Matter of, v. Feist Sons 
Co 917 

F. 

Falcon, Matter of 909 

Fanning, White v 906 

Farrell, O'Sullivan v 888 

Farrell, People v 907 

Faultless Fur Mfg. Co., Inc., v. 

159 West 25th St. Co., Inc. . . 883 

934 
Federal Estates Corporation v. 

Lucca Restaurant Co., Inc. . . 885 
Federal Export Corporation, 

Lewis v 941 

Federal X-Ray Co., Inc., Robert- 
son v 892, 942 

Fein v. Brandriss 902 

Feist Sons Co., Matter of Ertel 

v./ 917 

Feldman, Matter of, v. Elmont 

Cemetery, Inc 916 

Felsinger v. Wandling 891 

Felters Co., Inc., Matter of Van 

Schoickv..; 951 

Feser, People ex rel. Lentino v . . 90 



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by Google 



XX 



TABLE OF CASES REPORTED. 



PAOB. 

Fidelity Knitting Mills, Reingold 

v 932 

Fidelity Mutual Life Ins. Go. of 

Philadelphia, Fitzgerald v 920 

Figge, Lynch v 943 

Findlay, Ryder v 731 

. Finkenberg v. Levinson 940 

Finkenberg, Ino., v. Crompton 

Building Corporation 20 

Finnegan v. Buck 923, 924 

First Nat. Bank of Edgewater v. 

Stolzenberg 940, 942 

First Nat. Bank of Mission v. 

Cochran 895 

Fitzgerald v. Fidelity Mutual 

Life Ins. Co. of Philadelphia . . 920 

Flade v. Gerhold 897 

Flagella, Spetz v 920 

Fleisehman v. Johnson 886 

Forbes v. Harris 906 

Fort Miller Pulp & Paper Co., 

Thompson v 271 

Foster v. Halsey & Co. ... . 887, 942 
Four Hundred Sixty-one Eighth 

Ave. Co., Inc., Municipal 

Mortgage Co. v 370 

Four Hundred Thirty-four 

Broadway Realty Corporation 

v. Stone & Schleimer 894 

Fournier, Wilmes v 919 

Franco-American Chemical Co., 

Inc., A. & B. Export & Import 

Corporation v 938 

Frank v. Bowman Automobile 

Co 377 

Frankel, Major v 894 

Franken-Karch Corporation v. 

Castriotis 529 

Franklin v. Ross 921 

Freudenthal, Asinof & Sons, Inc., 

v 79 

Friedlander Chemical Co., Inc., 

v. Knox & Co., Inc 887, 890 

Friedman v. Buxbaum 937 

Friedman v. Davis 902 

Friedman v. Davis. (2 cases) . . 935 
Friedman, Mills v 918 



PAQl. 

Frohman, Inc., Pogany v 935 

Fromm v. Ajello 906 

Fruendlich & Malter Co., Inc., 

v. Appell 937 

Fulton County Gas & Electric 
Co. v. Rockwood Mfg. Co., 

Inc 915 

Fulton Street, etc. (In re Low) . . 905 
Funk, Andron v 886 

G. 

Galanos v. New York Central 

R. R. Co 886 

Galvin, Matter of (Tri-County 

Light & Power Co.) 950 

Gardner, Brown v 915 

Garfield National Bank, Adinolfi 

v 939 

Garfield Real Estate Co., Ellis 

v 921 

Garland, Borrelli v. (2 oases) . . 888 

Garrison, Marotta v 898 

Gaunt v. Nemours Trading Cor- 
poration 942 

Gaynor v. More 886 

Gebhard, Matter of 885 

General Electric Co., Matter of 

Schemerhorn v 670 

Genuine Panama Hat Works, 

Inc., v. Moses 886 

Gerard v. Empire Square Realty 

Co 244 

Gerhard & Hey, Inc., Slutzkin v. 559 

Gerhold, Flade v 897 

Gerli & Co., Inc., Schwartz v. . . 887 

Gibbs v. Kreizel 939 

Gilbert & Nichols Co., Oswego 

Milling Co. v 923 

Gilchrist, Odell v 931 

Gillen Co., Inc., Kennedy v 899 

905, 943 
Gilman, People ex rel., v. 

Tuomey 944 

Gimbel Bros., New York, Carroll 

v 444 

Gitlow, People v 773 

Glanzer v. Shepard 934 



Digitized 



by Google 



TABLE OF CASES REPOETED. 



XXL 



FAOB. 

Glickstein, Wilkenfeld & Terner, 

Inc., Gordon's Dry Gin Co., 

Ltd., v 932 

Globe & Rutgers Fire Ins. Co., 

National Liberty Ins. Co. of 

Ameriea v 981 

Globe & Rutgers Fire Ins. Co., 

Joseph v 936 

Globe Silo Co., Parkhill v 952 

Gluok v. Bedford Cleaning <fe 

Dyeing Co., Ine 493 

Gnich'tel v. Stone 983 

Godfrey, Greenberg v 894 

Goetsehhis & Co., Lapinsky v.. . 930 

Gold v. Ross 721 

Goldberg v. Levine 950 

Goldmunta, Matter of, v. Sude- 

rov 935 

Goldsmith v. Baldwin 895 

Goldstein, Korenman v 888 

Golubv. Hise 894 

Golubv. Hise. (2eases) 893 

Goooh v. Baton 920 

Goode v. Shartle 923 

Gordon v. Astoria Cognac & 

Liquor Rectifying Co., Inc 894 

Gordon, Levine v 898 

Gordon, Matter of 909 

Gordon's Dry Gin Co., Ltd., v. 

Glickstein, Wilkenfeld & Ter- 

ner, Inc 932 

Gormully, Matter of Hyde v. .. . 939 
Gottlieb v. Interborough Rapid 

Transit Co 937 

Grade Crossing Comrs., City of 

Buffalo, Matter of (Buffalo 

Veneer Co.) (Proc. No. 110). . 919 
Grand Art Flower Co., Inc., v. 

Markovits 387 

Grasselli Chemical Co., Luddecke 

v 936 

Gratton, Matter of 32 

Gray v. Brooklyn City R. R. Co. 944 
Great American Ins. Co., Aldrioh 

v 174 

Great Lakes Dredge & Dock Co., 

Matter of Ciriello v 913 

Green v. Maguire 938 



Green, North American Fisheries 

& Cold Storage, Ltd., v 250 

Green River Distilling Co. v. 

Massachusetts Bonding & Ins. 

Co 941 

Greenagle, People (Complaint of 

Ashley)v 922 

Greenbaum v. Eempf, Inc 894 

Greenberg v. Godfrey 894 

Greiner v. West Shore R. R. 

Co 919 

GrifTel v. Columbia Kid Leather 

Mfg. Co., Inc 884 

Griffiths v. Hines 921 

Grillo, Matter of, v. Sherman* 

Stalter Co 362 

Grossman, Deitel v 898 

Grosvenor v. Beauley 939 

Gruber, Macher v 884, 934 

Gruening v. Tribune Assn 892 

Grunsick, Matter of, v. Sohaefer 

&8on 334 

Guaranty Trust Co. of New 

York, Enrich v 942 

Guardian Holding Co., Inc., 

Mandelv 576 

Guarino, People v 940 

Guggenbuehler v. Cast-a-Liner 

Co 884 

Guiliana, Matter of, v. Chasin. . 913 

Guma, People v 885 

Gumbel v. Altman & Co 935 

Gustafson, Bush, Beach & Gent, 

Inc., v 936 

Gutmann Silks Corporation, 

Reillyv 681 

Guzzi v. City of New York 891 

H. 

Hagenaers v. Caballero 580 

Haile, People ex rel., v. Brundage. 745 

Hall, Matter of (Culross) 922 

Hall v. Meyer 941 

Halladay , McGraw v 920 

Hallenbeok, Matter of 381 

Halpin, Edgar v. 941 

Halpin, Reade v 913 



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xxn 



TABLE OF CASES REPORTED. 



PAG*. 

Halsey & Co., Foster v 887, 942 

Hand, Osborne v 900 

Hansen v. Hansen 893 

Happ v. Skinner 913 

Harris, Forbes v 906 

Harris v. Mandevilie 933 

Harris v. Vogue Co 887 

Harrison, Nathan v 903 

Harrity v. Steers 11 

Hart v. Hart 906 

Harte, Davis Bros. Realty Cor- 
poration, Inc., v 403 

Harvey, People ex rel. Stiles v . . 918 

Haslan, Duboff v 117 

Haxton, Symington v 85 

Hazelwood Oil Co., Matter of . . . 23 

Heidelberg v. Murphy 939 

Heineman v. Liohtenstein Bros., 

Ine 883 

Helena, Steinbeck v 186 

Hellman v. Schneider, Inc 931 

Helvetia Realty Co., People ex 

rel., v. Leo 887 

Hendricks v. Clements 144 

Herbst v. Bellack 928 

Herman v. Herman 924 

Herrmann v. Burlington Textile 

Co 932 

Herx & Eddy, Inc., Bennet v. . . 891 
Herz v. Automobile Mechanics 

Corporation. (2 cases) 931 

Hester Motors, Inc., v. Huber. . 889 

Hevenor, Irwin v 938 

Hewitt, Rolfe v 952 

Heyman v.- Kevorkian 883 

Heyman, Kevorkian, Inc., v. . . . 883 
Hicks, People ex rel., v. Akin. . . 918 

Hickson, Inc., Inglesli v 585 

Hier v. Wightman 920, 923 

Hill, People v 933 

Hilton, Barnes v 891 

Hind v. Klipstein & Co 930 

Hines, Acme Wood Carpet 

Flooring Co. v 884 

Hines, Allen v 923 

Hines, Griffiths v 921 

Hines, Laoey v 950 



PAOI. 

Hines, Matter of Peterson v 951 

Hines v. Yanklowitz 915 

Hise, Golub v 894 

Hise, Golubv. (2 oases) 893 

Hluboky, Matter of, v. Kopitz . . 917 
Hoddup-Evans Co., Inc., Landau 

v 942 

Hoeland v. Lange 934 

Hoffman, Kineon v 898 

Hoffman, Matter of, v. Van 

Benthuysen Co 76 

Hofmann v. Hofmann \ . . 596 

Hogan v. Birns Express, Inc. . . . 930 
Hoisting Machinery Co. v. Elder- 
fields Reservation, Inc 893 

Holbrook, Cabot & Rollins Cor- 
poration, Matter of Brady v. . 74 
Holland v. Singer Sewing 

Machine Co 891 

Home Ins. Co., Alterman v 151 

Home Ins. Co., Lewis v 940 

Hooker Electrochemical Co. v. 
Chipman Chemical & Engi- 
neering Co., Inc 890 

Hookway v. Lillis 922 

Hooper, Matter of,* v. Sauquoit 

Spinning Co 917 

Hosford, Bonwit, Teller & Co. 

v 929 

Hotel Pennsylvania, Matter of 

Watkinson v 624 

Houghtaling, Matter of (Wiokes). 915 
Howden & Co. of America, Inc., 
v. American Condenser & 

Engineering Corporation 882 

Howell v. Nash. : 907 

Huber, Hester Motors, Inc., v . . 889 
Hudson, City of, Commission of 

Public Works, Levine v 351 

Huffman & Co., Matter of Lutz 

v 915 

Hunt v. New York Central R. 

R. Co 923 

Hurlbut (In re Salvador) 571 

Hurwitz v. Calvin Realty Cor- 
poration 416 

Hutchings, People v 885 



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TABLE OF CASES REPORTED. 



xxm 



Huyler's v. Broadway-John 

Street Corporation 410 

Hyde, Matter of, v. Gkraully... 939 

I. 
Ulston lee Co., Matter of Quick 

v 676 

Imperial Mfg. & Trading Co., 

Inc., Levy v 885 

Indelli, Seltzer v 890 

Ingersoll-Rand Co. v. United 

States Shipping Board Emer- 
gency Fleet Corporation 838 

Inglesli v. Hickson, Inc 585 

Insana, Matter of, v. Nordenholt 

Corporation '. 913 

Insurance Co. of North America, 

Joseph v 936 

Interborough Rapid Transit Co., 

Gottlieb v 937 

Interborough Rapid Transit Co., 

Selonek v 930 

International R. Co., Cole v. (2 

cases) 921 

International R. Co., LaDuque 

v 919 

International R. Co., Potter v. 

(2 cases) 921 

International R. Co., Scheffer 

v 921 

International R. Co., Wall v. . . . 685 

Irving, People v 885 

Irwin v. Hevenor 938 

Israel v. Israel 934 

J. 

Jacobs v. Moore 452 

James v. Eighth Avenue R. R. 

Co 895 

James v. Miller 895 

Jeffrey Mfg. Co. v. Peets 940 

Jensen v. Blood 920 

Johnson, Fleischman v 886 

Johnson, Lloyd v 922 

Johnson, Matter of 920 

Johnson Co., Inc., v. Kemlein. . 907 
Johnston, Agrow v 892 



PAGB. 

Jonas, Carvel Court Realty Co., 

Inc., v 662 

Jones v. Jones (Nos. 1, 2, 3) 902 

Jones, Slattery v 886 

Jordan, Coco v 921 

Jordan v. Village of Port Chester. 896 
Joseph v. Globe & Rutgers Fire 

Ins. Co 936 

Joseph v. Insurance Co. of North 

America 936 

Joseph v. Murray 911 

Joseph, Union Exchange Nat. 

Bank of New York v 895 



Ealbaoh, Link v 939 

Kampfl, Matter of 919 

Kanner v. Schaefer Brewing Co. 

(2 cases) 892 

Kanter v. New Amsterdam Casu- 
alty Co 756 

Kastenbaum v. Kastenbaum 893 

Kaston v. Zimmerman 930 

Katzenstein, Pells v 918 

Katzman, Rural Publishing Co., 

Inc., v 934 

Kaufman (People v. Levine) 900 

Kaufmann, Matter of 830 

Kayfetz v. Marcus 944 

Kedrovsky v. Archbishop & Con- 
sistory of Russian Orthodox 

Greek Catholic Church 127 

Keeler, Rogers v 889 

Keene, Equitable Trust Co. v.. 384 

Keep v. White 736 

Keery Co., Inc., Matter of 

Smith v 916 

Keller, Matter of, v. Reis & 

Donovan, Inc 45 

Kelly, Conlon v 892 

Kelly, Smith v 915 

Kelly, WithereU v 227 

Kemlein, Johnson Co., Inc., v. . 907 

Kempf, Inc., Greenbaum v 894 

Kennedy v. Gillen Co., Inc 899 

905, 943 
Kenyon v. Robin 921 



Digitized 



by Google 



XXIV 



TABLE OF CASES REPORTED. 



PAQl. 

Kevorkian, Heyman v 883 

Kevorkian v. Manhattan Storage 

& Warehouse Co 936 

Kevorkian, Inc., v. Heyman 883 

Kiesel v. Kraus 936 

Kineon v. Hoffman 898 

King, Rice & Ganey Co. v. City 

of New York. 938 

Kings County, City Prison, War- 
den of, People ex rel. Spaet v . 908 

Kinkead, Matter of 905 

Klein, Austin v. 887 

Klein v. Smith 870 

Klein, Stone v 883 

Klipstein & Co., Hind v 930 

Klipstein & Co., Pennsylvania 

& Delaware Oil Co. v 886 

Klotz, Matter of, v. Buffalo 

Union Furnace Co 916 

Knight v. Brown 950 

Knopf, Sheldon v 891 

Knox v. Rodgers 941 

Knox & Co., Inc., Friedlander 

Chemical Co., Inc., v 887, 890 

Koch & Co., Inc., Minella v 942 

Kopitz, Matter of Hluboky v. . . 917 

Korenman v. Goldstein 1 . . 888 

Kornblum v. Alpern 899 

Korostoff v. Dorf 889 

Kousoh, Matter of, v. Ellis 914 

Kraemer, Mahler v. (Coe) 907 

Kraemer v. World Wide Trading 

Co., Inc 305 

Kram, Robison & Co., Inc., v. 

(No. 1) 873 

Kram, Robison & Co., Inc., v. 

(No. 2) 878 

Kraus, Kiesel v 936 

Kreinik, Braman v 884 

Kreizel, Gibbs v 939 

Krinsky, Matter of, v. Ward & 

Gow 915 

Kriser v. Rodgers 394, 938 

Krstovic v. Van Buren 915 

Krueger v. Denny 943 

Krulewitoh v. National Import- 
ing & Trading Co 544 



PAOl. 

Kruse, Weintraub v 807 

Krutiakoff v. Krutiakoff 892 

Kupelian v. Andrews 921 

L. 

LaDuque v. International R. 

Co 919 

La Fetra, People ex rel. Durham 

Realty Corporation v 280 

Lacey v. Hines 950 

Lafrinz v. Whitney 131 

Lamborn, Central Sugar Co. v. . 904 

909 
Land Value Refunding Co., Inc., 

v. Babeock Co., Inc 938 

Landau v. Hoddup-Evans Co., 

Inc 942 

Landau, Waxman v 893 

Lang, Matter of (Babeock) 902 

Lange, Hoeland v 934 

Lapinsky v. Goetsohius & Co . . . 930 
Lasher v. Metropolitan Savings 

Bank 886, 895 

Lazarus v. Wiernicki 830 

Lawler, Matter of 27 

LeRoy v. Townsend 913 

Lederson, Matter of, v. Cassidy 

& Dorfman 613 

Leerburger, Strasbourger v 480 

Lehigh Valley R. R. Co., Mach- 

cinski v 899 

Lehigh Valley R. R. Co., Torisco 

v 915 

Lehman, People v 907 

Lehrich, Stahl v 914 

Lemon v. Scott 907 

Lennox v. Soibilia 895 

Lentino, People ex rel., v. Feser. 90 
Leo, People ex rel. Helvetia 

" Realty Co. v 887 

Leonard & Co., Inc., Matter of 

(Sullivan) 934 

Leonhardt v. City of Yonkers. , . 234 
Leslie, Matter of (Salvador) .... 571 
Levine v. Commission of Public 

Works of City of Hudson 351 

Levine, Goldberg v 950 



Digitized 



by Google 



TABLE OF CASES REPORTED. 



XXV 



Levine v. Gordon 898 

Levine (Kaufman), People v 900 

Levinson, Finkenberg v 940 

Levinson, Newburger v 502 

Levy v. Imperial Mfg. A Trading 

Co., Ino 885 

Levy v. Post J943 

Lewis v. Federal Export Cor- 
poration 941 

Lewis v. Home Ins. Co 940 

Liberty Nat. Bank, United States 

Mortgage & Trust Co. v 890 

Liehtenstein Bros., Inc., Heine- 
man v 883 

Ldeberman, People v 887 

Lflley, Smith v 922 

IiOiendahl, Loughman v 867 

LOlis, Hookway v 922 

Lincoln v. Miller 905 

lindheim, Matter of 827 

link v. Kalbaoh 939 

Link, National Importing & 

Trading Go. v 889, 934 

link v. Thomstorff 884 

Iinkins (In re Pluym) 565 

Lippe v. Tanenhaus 883 

Littlefield-Shepperd Co., Inc., v. 

Dunn 896, 942 

Littleton (In re Scudder) 904 

Littleton, Matter of (Scudder) ,„ 904 

Lloyd v. Johnson 922 

Lobel v. Lobe! 940 

London A Lancashire Indemnity 
Co. of America, Riehle A Co., 

Inc., v 891 

Long Island R. R. Co., People 

v 897 

Longman, Matter of 882 

Loomis v. Dildine 903 

Loughman v. Iilliendahl 867 

Low, Matter of (Fulton St., etc.). 905 

Lowenstein, Weinberg v 891 

Lucca Restaurant Co., Inc., 
Federal Estates Corporation 

v 885 

Looey v. Callan Bros., Ino 940 

Luezka, Willie v 919 



fags. 
Luddeoke v. Grasselli Chemical 

Co 936 

Ludlam v. Ludlam. (2 oases) . . 896 

Lundberg v. Lundberg 899 

Lutz, Matter of, v. Huffman & 

Co 915 

I^ynoh v. Figge 943 

M. 
Maohcinski v. Lehigh Valley R. 

R.Co 899 

Maohcinski, Safety Night light 

Co., Inc., v 904 

Maoher v. Gruber 884, 934 

Mackenzie v. Bobrick 892 

Maoy, EriokBOn v 922 

Madonia v. Sherman 922 

Maggio, People v 937 

Maguire, Green v. . . 938 

Mahler v. Kraemer (Coe) 907 

Mahon v. O'Grady 921 

Mahoney, Matter of, v. Black & 

White & Town Taxis, Inc. . . 951 

Major v. Frankel 894 

Maleomson, Matter of 933 

Mandel v. Guardian Holding Co., 

Inc 576 

Mandeville, Harris v 933 

Manhattan Storage A Warehouse 

Co., Kevorkian v 936 

Manley, American Trust Co. v. . 811 
Manley, People ex reL, v. Craig. 859 

Marcus, Kayfetz v 944 

Mark, Oslon v 937 

Markovits, Grand Art Flower 

Co., Inc., v 387 

Marks v. Mayers 894 

Marloew Amusement Co., People 

ex reL, v. Cantor (Taxes of 

1918) 193 

Marotta v. Garrison 898 

Marrone v. Somers Coal Co., 

Inc 903 

Marsch A Co., Matter of Svolos 

v 674 

Martin v. Claflins, Inc. . .'. 883 

Martin v. O'Keefe 814 



Digitized 



by Google 



XXVI 



TABLE OF CASES REPORTED. 



PAQB. 

Martini, People v 889 

Maryland Casualty Co. v. Audi- 
tore & Co., Inc 886 

Massachusetts Bonding & Ins. 
Co., Green River Distilling 

Co. v 941 

Mastrangelo v. Denison 922 

Matter of Angelo 888 

Matter of Anthus v. Rail Joint 

Co 917 

Matter of Baker 901, 904 

Matter of Balducei v. Rakov — 52 
Matter of Beeman v. Board of 

Education of Penn Yan 357 

Matter of Bennett 904 

Matter of Bixby v* Cotswold 

Comfortable Co 659 

Matter of Board of Water Supply 
of City of New York (Buck 

— Parcel No. 7) 915 

Matter of Bossom 339 

Matter of Boulevard Theatre & 

Realty Co 518 

Matter of Bowers 548 

Matter of Brady 895 

Matter of Brady v. Atlantic 

Basin Iron Works, Inc 951 

Matter of Brady v. Holbrook, 
Cabot & Rollins Corporation. 74 

Matter of Brobst 884, 894, 896 

Matter of Brown v. Mulliken. . 907 

Matter of Caldwell 890 

Matter of Castor v. Collegiate 
Baptist Church of the Cove- 
nant 914 

Matter of Ciriello v. Great Lakes 

Dredge & Dock Co 913 

Matter of Delso v. Crucible Steel 

Co 288 

Matter of Devoy v. Craig 916 

Matter of Dickey 905 

Matter of Dilg v. Pyrene Mfg. Co. 916 

Matter of Domkowski 922 

Matter of Donovan v. Alliance 

ElectricCo 678 

Matter of Doyle (O'Connor) .... 733 
Matter of Early. 889, 934 



PAOI. 

Matter of Ertel v. Feist Sons 

Co 917 

Matter of Falcon 909 

Matter of Feldman v. Elmont 

Cemetery, Inc 916 

Matter of Galvin (Tri-County 

Light A Power Co.) 950 

Matter of Gebhard 885 

Matter of Goldmuntz v. Suderov. 935 

Matter of Gordon 909 

Matter of Grade Crossing 

Comrs., City of Buffalo (Buff- 
alo Veneer Co.) (Proc. No. 

110) 919 

Matter of Gratton 32 

Matter of Grillo v. Sherman- 

StalterCo 362 

Matter of Grunsick v. Sohaefer 

&Son 334 

Matter of Guiliana v. Chasm . . . 913 

Matter of Hall (Culross) 922 

Matter of Hallenbeck 361 

Matter of Hazelwood Oil Co 23 

Matter of Hluboky v. Kopitz. . . 917 
Matter of Hoffman v. Van Ben- 

thuysen Co 76 

Matter of Hooper v. Sauquoit 

Spinning Co 917 

Matter of Houghtaling (Wickes). 915 
Matter of Hyde v. Gormully. ... 939 
Matter of Insana v. Nordenholt 

Corporation 913 

Matter of Johnson 920 

Matter of Kampfl 919 

Matter of Kauf mann 830 

Matter of Keller v. Reis & • 

Donovan, Inc 45 

Matter of Kinkead 905 

Matter of Klotz v. Buffalo Union 

Furnace Co 916 

Matter of Kousch v. Ellis 914 

Matter of Krinsky v. Ward & 

Gow 915 

Matter of Lang (Babcock) 902 

Matter of Lawler 27 

Matter of Lederson v. 'Cassidy 

& Dorfman 613 



Digitized 



by Google 



TABLE OF CASES REPORTED. 



XX vu 



P1G1. 

Matter of Leonard & Co., Inc. 

(Sullivan) 934 

Matter of Leslie (Salvador) 571 

Matter of Lindheim 827 

Matter of Littleton (Seadder). . . 904 

Matter of Longman 882 

Matter of Low (Fulton St., etc.). 905 
Matter of Lutz v. Hoffman & 

Co 915 

Matter of Mahoney v. Blaok & 

White & Town Taxis, Ine 951 

Matter of Malcomson 933 

Matter of MeCrohan 920 

Matter of McGoey v. Turin 

Garage & Supply Co 436 

Matter of McNair 922 

Matter of McNulty v. Curth & 

Bona 914 

Matter of Mooney v. Delmon- 

ioo's. 913, 910 

Matter of Mould 822, 897 

Matter of Nestor v. Pabst Brew- 
ing Co 434 

Matter of Newham v. Chile 

Exploration Co 291 

Matter of Newtown Gaa Co. v. 
Public Service Comm., First 

Dist 895 

Matter of Nidds v. Sterling 

Ceiling & Lathing Co 432 

Matter of Official Referees 920 

Matter of Ororke (Old Kings- 
bridge Road) 893, 934 

Matter of O'Sullivan 942 

Matter of O'Sullivan v. Woods 

Theatre Co 609 

Matter of Palmer & Pierce, Inc. 
(Producers Mercantile Cor- 
poration) 523 

Matter of Passina v. Archbold 

Forwarders, Ino 951 

Matter of Peck v. Tassell & 

Fairbanks 916 

Matter of Peterson v. Hines 961 

Matter of Plnym (Iinkins) .... 565 
Matter of Poluoci v. Norris Co.. 805 
Matter of Posey v. Moynehan . . 440 



FAQS. 

Matter of Pryer 894 

Matter of Quick v. IUston Ice 

Co 676 

Matter of Rattner v. Schiff . ... 917 
Matter of Rauth v. Sohaefer & 

Son 951 

Matter of Salvador (Hurlbut) . . 571 
Matter of Sohaneenbach v. Wal- 
dorf-Astoria Hotel Co 950 

Matter of Sohemerhom v. 

General Electric Co 670 

Matter of Sohwarz 194 

Matter of Soudder (Littleton). . . 904 
Matter of Shambeau v. Robeson 

Process Co 950 

Matter of Sheive (Turner) 631 

Matter of Skeels v. Paul Smith's 

Hotel Co 39 

Matter of Smith v. Eeery Co., 

Inc , 916 

Matter of Stein v.. Williams 

Printing Co. 336 

Matter of Steinberg 935 

Matter of Stephenson 914 

Matter of Strusyoki v. Smith 

Contracting Co 945 

Matter of 8ullivan 905, 942 

Matter of Svolos v. Marsoh & 

Co 674 

Matter of Syracuse & Suburban 

R. R. Co. (Pine St.) 924 

Matter of Taf t v. Champlain Silk 

Mills 917 

Matter of Thayer 985 

Matter of Transit Construction 

Commissioner 897 

Matter of Tyroler 905 

Matter of Underhill 898 

Matter of Van Schoick v. Felters 

Co., Inc 951 

Matter of Watkinson v. Hotel 

Pennsylvania 624 

Matter of Weinberg v. Ehrenberg 

Brass Mfg. Co 915 

Matter of Wessing v. Oneita 

Knitting Mills 951 

Matter of Whitaker 905 



Digitized 



by Google 



XXV111 



TABLE OF OASES REPORTED. 



PAG*. 

Matter of Whittemore v. Bing- 
hamton Light, Heat & Power 

Oo 017 

Matter of Woodcock v. Temple 

Bros -. 951 

Matter of Yeannakopoulos 261 

Matter of Zimmer v. Seabury & 

Co 916 

Mattle v. Cohn 933 

Maxim, People ex rel. Croak v . . 952 

Maxwell v. Thompson 616 

Mayer, Zeoehini v 423 

Mayer Shirt Co., Phillips & Co., 

Inc., v 895 

Mayers, Marks v 894 

McCoun v. Pierpont 726 

McCrohan, Matter of 920 

McDermott, Edmonds v 950 

McGahan v. State of New York. 922 
McGoey, Matter of, v. Turin 

Garage & Supply Co 436 

McGraw v. Halladay 920 

McHarg v. Commonwealth Fi- 
nance Corporation 862 

McEellar v. American Synthetic 

Dyes, Inc 896, 943 

McKinley Music Co., O'Neilv.. 890 

McLaughlin, Boyle v 413 

McLear v. Baimat 918 

McMartin, Mulcahy v 887 

McMullen Co., Waronen v 929 

McNair, Matter of 922 

MoNulty, Matter of, v. Curth & 

Sons 914 

McPhillips v. New York Tele- 
phone Co 643 

MoVay, Becker v 922 

MoVoy, B. G. H. Metal Mfg. 

Co., Inc., v 923 

Mechanicville, City of, Rice v. . 268 

Melnick v. Borden 895 

Mendoza, Del Piatta v 833 

Metropolitan Savings Bank, 

Lasher v 886, 895 

Metzger v. Coe-Stapley Mfg. 

Corporation 664 

Meyer v. Drubin 937 



FAQB. 

Meyer, Hall v 941 

Meyer v. Meyer 905 

Meyers v. Bryoe 934 

Meyers v. Cohen 941 

Meyersohn v. Caravel Co., Inc . . 899 
Milau, Comr. of Public Charities, 

City of New York (Complaint 

of Cordes), v 898 

Miles v. New York Central R. 

R. Co 748 

Miller, James v 895 

Miller, Lincoln v 906 

Miller, Springfield Breweries Co. 

v 918 

Miller v. Stevens 932 

Miller, Weeks v 909 

Mills v. Friedman 918 

Minella v. Koch & Co., Inc 942 

Mintz v. Callen 938 

Mirabilio v. New York Central 

R. R. Co 899 

Mizeok v. O'Boyle 903 

Molby Boiler Co., Inc., Stone v. 68 
Molino v. City of New York. ... 496 

Molino, People v 918 

Moller v. Pickard 919, 921 

Monowitz v. Braokenridge 929 

Montgomery v. United States 

Fidelity & Guaranty Co 938 

Moody Engineering Co., Inc., v. 

Catalana de Gas y Electrioi- 

dad, S. A 940 

Mooney, .Matter of, v. Delmon- 

ico's 913, 916 

Moore, Dunn v 883 

Moore, Jacobs v 452 

More, Gaynor v 886 

Morewood Realty Holding Co., 

People ex rel., v. Cantor 190 

Morrell v. Brooklyn Borough 

Gas Co. (No. 1.) 1, 905 

Morrell v. Brooklyn Borough 

Gas Co. (Nos. 2, 3) 899, 906 

Morris, Donnelly v 913 

Morris, Complaint of (People ex 

rel. City of New York v. 

Morris) 944 



Digitized 



by Google 



TABLE OF CASES EEPORTED. 



XXIX 



PAOl. 

Morris, People ex reL City of 
New York (Complaint of 

Morris) v 944 

Morsohauser'v. Ringksr & Go. . 907 
Moses, Genuine Panama Hat 

Works, Inc., v 886 

Moses, Spates v 906 

Mosler & Co., Wachtel v 240 

Mould, Matter of 822, 897 

Moyneh&n, Matter of Posey v . . 440 

Mulcahy v. MeMartin 887 

Muldoon v. Dock Contractor 

Co 894 

Muller-Fox Brokerage Co, v. 

Winter '. . 940 

Mulliken, Matter of Brown v . . . 907 
Municipal Mortgage Co. v. 

Dodge Publishing Co 941 

Municipal Mortgage Co. v. Four 
Hundred Sixty-one Eighth 

Ave. Co., Ine 370 

Murphey, Wilbraham v 930 

Murphy, Heidelberg v 939 

Murray, Joseph v 911 

N. 

Narbin v. Nonas 899 

Nash, Howell v 907 

Nassoit, People ex rel., v. Young. 513 

Nathan v. Harrison 903 

National City Bank of Brooklyn 

v. City of New York 905 

National Importing & Trading 

Co., Krulewiteh v 644 

National Importing & Trading 

Co. v. link 889, 934 

National Liberty Ins. Co. of 

America v. Globe & Rutgers 

Fire Ins. Co 931 

National Motor Car & Vehicle 

Corporation, Drake v 113 

National Park Bank, People ex 

rel., v. Cantor (Taxes of 1919). 890 
National Surety Co., Budraceo 

v 909 

Nauss v. NaussBroB. Co. (No. 1). 318 
Nauss v. Nauss Bros. Co. (No. 2). 328 



PAQl. 

NeaJon v. Nealon 694 

Nemours Trading Corporation, 

Gaunt v 942 

Nephew, Conderman v 923 

Nestor, Matter of, v. Pabst 

Brewing Co 434 

New Amsterdam Casualty Co., 

Kanter v 756 

New Paltz, Highland & Pough- 

keepsie Traction Co., Village 

of New Paltz v 952 

New Paltz, Village of, v. New 

Paltz, Highland & Poughksep- 

sie Traction Co. . . 952 

New York Central R. R. Co., 

Galanosv 886 

New York Central R. R. Co., 

Hunt v 923 

New York Central R. R. Co., 

Miles v 748 

New York Central R. R. Co., 

Mirabilio v 899 

New York Central R. R. Co., 

People ex rel., v. Public Service 

Comm., Second Dist 426 

New York, City of, Asserson 

v 12 

New York, City of, v. Consoli- 
dated Telegraph & Electrical 

Subway Co 935 

New York, City of, Guzzi v 891 

New York, City of, King, Rice 

& Ganey Co. v 938 

New York, City of, Molino v. . . 496 
New York, City of, National 

City Bank of Brooklyn v. . . . 905 
New York, City of, Schleicher 

v 908 

New York, City of, v. Steen, 

Inc. (Nos. 1,2) 898 

New York, City of, Wanamaker, 

Inc., v 940 

New York, City of, Wegmann 

v 540 

New York, City of, Bd. of Water 

Supply, Matter of (Buck — 

Parcel No. 7) 915 



Digitized 



by Google 



XXX 



TABLE OF CASES REPORTED. 



New York, City of, Comr. of 
Public Charities of (Complaint 
of Beckman),v. Wostein 933 

New York, City of, Comr. of 
Public Charities of (Complaint 
of Cordes), v. Milau 898 

New York, City of, Comr. of 
Public Charities (Complaint 
of Steinman), v. Tully 930 

New York, City of, People ex rel. 
(Complaint of Morris) , v. Mor- 
ris.. 944 

New York Fruit Market v. 
Atlantic Fruit Co 952 

New York Income Corporation 
v. Wells. (2 cases) 136, 941 

New York, Lackawanna & West- 
ern R. Co., People ex rel., v. 
City of Buffalo 389 

New York Life* Ins. Co., Coch- 
rane v 931 

New York Life Ins. Co., Roberts 
v 97 

New York & Queens Electric 
Light & Power Co., Olm v. . . 901 

New York, State of, American 
Woolen Co. v 698 

New York, State of, Callanan v. 944 

New York, State of, McGahan 
v 922 

New York, State of, St. Lawrence 
Construction Co., Inc., v 914 

New York Telephone Co., 
McPhillips v 643 

New York Transfer Co., Archer 
v 891 

Newburger v. Levinson 502 

Newham, Matter of, v. Chile 
Exploration Co 291 

Newman v. Pierson 407 

Newtown Gas Co., Matter of, v. 
Public Service Comm., First 
Dist 895 

Nidds, Matter of, v. Sterling 
Ceiling & Lathing Co 432 

Nixon, People ex rel. Brooklyn 
City R. R. Co. v 887 



Nonas, Narbin v 899 

Nordenholt Corporation, Matter 

of Insana v 913 

Norris Co., Matter of Poluooi v. 806 
North American Fisheries & Cold 

Storage, Ltd., v. Green 250 

O. 

O'Boyle, Mizeck v 903 

O'Brien v. B. N. Y. Realty Go. . 944 

O'Connor (In re Doyle) 733 

O'Grady, Mahon v 921 

O'Keefe, Martin v 814 

O'Meara Co. v. Continental 

Folding Paper Box Co 930 

O'Neil v. MoKinley Music Co. . 890 
O'Neil v. Roman Baths Co. . . . 890 

891 

O'Sullivan v. Farrell 888 

O'Sullivan, Matter of 942 

O'Sullivan, Matter of, v. Woods 

Theatre Co 600 

Odell v. Gilchrist 931 

Odell, Smith v 943 

Official Referees, Matter of 920 

Old Kingsbridge Road (In re 

Ororke) 893, 934 

Oleck v. Debski 887, 892 

Olm v. New York & Queens 

Electric Light & Power Co. . . 901 

Olsen, Shepard Co. v 902 

One Hundred Fifty-nine West 

25th St. Co., Inc., Faultless 

Fur Mfg. Co., Inc., v. ... 883, 934 
Oneita Knitting Mills, Matter of 

Wessing v 951 

Oppermann, Sullivan v 944 

Orange v. Bowman 942 

Ororke, Matter of (Old Kings- 
bridge Road) 

Orville Realty Co., Inc., v. 

Warnick 

Osborne v. Hand 

Oslon v. Mark 

Ostrander v. Ostrander 

Oswego Milling Co. v. Gilbert & 

Nichols Co 



893, 934 



900 
937 

918 



Digitized 



by Google 



TABLE OF CASES REPORTED. 



XXXI 



P. PAWL 

Pabst Brewing Co., Matter of 

Nestor v 434 

Palmer v. Rotary Realty Co., 

Ine 903, 906 

Palmer & Pierce, Inc., Matter of 
(Producers Mercantile Corpo- 
ration) 523 

Parker v.. Simon 4 886 

Parkhill v. Globe Silo Co 952 

Parsons, People v 918 

Passina, Matter of, v. Archbold 

Forwarders, Inc 951 

Paul Smith's Hotel Co., Matter 

of Skeels v 39 

Pavilion Natural Gas Co., Public 
Service Comm., Second Dist., 

v 534 

Pavilion Natural Gas Co., Village 

of Warsaw v 716 

Peart, People v. (2 cases) 920 

Peck, Matter of, v. Tassell & 

Fairbanks *. . . 916 

Peets, Jeffrey Mfg. Co. v 940 

Pells v Katzenstein 918 

Pels Co., Sampson v 487 

Penn Yan, Bd. of Education of, 

Matter of Beeman v 357 

Pennsy vania & Delaware Oil Co. 

v. Kh'pstein & Co 886 

Pennsylvania R. R. Co., Ross- 
bach v 941 

Pennsylvania Text'le Co., So'e- 

iac v 932 

People v. Brennan 885 

People v. Burns 923 

People v. Calletti 937 

People v. Darano 885 

People v. Farrell 907 

People v. Gitlow 773 

People v. Guarino 940 

People v. Guma 885 

People v. Hill 933 

People v. Rutchings 885 

People v. Irving 885 

People v. Lehman 907 

People v. Levine (Kaufman) 900 

People v. Iieberman 887 



FAQl. 

People v. Long Island R. R. Co . 897 

People v. Maggio 937 

People v. Martini 889 

People v. Molino 918 

People v. Parsons 918 

People v. Peart (2 cases) 620 

People v. Perry 885, 891 

People v. Ragazinsky 743 

People v. Riley 885 

People v. Rizzo . 885 

People v. Rovalli 900 

People v. Savino 904 

People v. Schorr 930 

People v. Sherrill 893 

People v. Stein 943 

People v. Stivers 885 

People v. Weston 885 

People v. Whitson 910 

People v. Wright 885 

Peop'e (Complaint of Ashley) v. 

Greenagle 922 

People ex rel. Brooklyn City R. 

R. Co. v. Nixon 887 

People ex rel. City of New York 
(Complaint of Morris) v. Mor- 
ris 944 

People ex rel. Cronk v. Maxim . . 952 
People ex rel. Durham Realty 

Corporation v. La Fetra 280 

People ex re 1 . Economous v. 

Coakley 919 

People ex rel. Oilman v. Tuomey. 944 
People ex rel. Haile v. Brundage. 745 
People ex rel. Helvetia Realty 

Co. v. Leo 887 

People ex rel. Hicks v. Akin .... 918 
People ex rel. Lentino v. Feser . . 90 
People ex rel. Manley v. Craig. . 859 
People ex rel. Marloew Amuse- 
ment Co. v. Cantor (Taxes of 

1918) 193 

People ex rel. Morewood Realty 

Holding Co. v. Cantor 190 

People ex rel. Nassoit v. Young . 513 
People ex rel. National Park 
Bank v. Cantor (Taxes of 
1919) 890 



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XXX11 



TABLE OF CASES REPORTED. 



People ex rel. New York Central 
R. R. Co. v. Public Service 

Comm., Second Dist 426 

People ex rel. New York, Lacka- 
wanna & Western R. Co. v. 

Cfty of Buffalo 389 

People ex rel. Post & McCord, 

Inc., v. Cantor 895 

People ex rel. Rand v. Craig 850 

People ex rel. Rhodes v. Rhodes. 900 
People ex rel. Smith v. Seneca 

Copper Corporation 940 

People ex rel. Smyth v. Craig. . . 857 
People ex rel. Spaet v. Warden 

of City Prison, Kings County . 908 
People ex rel. Stafford v. Travis. 635 
People ex rel. Stiles v. Har- 
vey 918 

People ex rel. Szerlip v. Enright . 900 
People ex rel. Warnke v. Warnke. 943 
People ex rel. Wiesenthal v. 

Dunne 225 

Perfection Tire & Rubber Co., 
Inc., v. Perfection Tire & 

Rubber Co 932 

Perkins, Reichle v 919 

Perkins, Tierney v. 918 

Perry, People v 885, 891 

Peters, Drobner v 942 

Peterson, Matter of, v. Hines. . 951 
Petroleum Corporation of Amer- 
ica, Erb v 893 

Pfeiffer v. Sternberger 888 

Phillips & Co., Inc., v. Mayer 

Shirt Co 895 

Piokard, Moller v 919, 921 

Pierce v. Eckhart & Co 914 

Pierpont, MoCoun v 726 

Pierson, Newman v 407 

Pierson & Co. v. American Steel 

Export Co 934 

Pine Street (In re Syracuse & 

Suburban R. R. Co.) 924 

Pittsburgh, Shawmut & North- 
ern R. R. Co., Central Trust 

Co. of New York v 922 

Plant, Beers v 933 



Plumb v. Richmond light & R. 

TL Co 254 

Pluym, Matter of (Linkins) 565 

Pookrose v. Shapiro 918 

Pogany v. Frohman, Inc 935 

Polo v. Scheldt 903 

Polucci, Matter of, v.Norris Co. 805 
Port Chester, Village of, Jordan 

v ". '... 898 

Port Chester, Village of, Rogers 

v. (2 cases) 900 

Posey, Matter of, v. Moynehan. 440 

Posner v. Cohn 373 

Post, Levy v 943 

Post & McCord, Inc., People ex 

rel., v. Cantor 895 

Potter v. International R. Co. 

(2 cases) 921 

Powers v. Powers 940 

Presler, Eckert v 950 

Primrose Dress Co., Inc., v. 
DreyfuBs Costume Corpora- 
tion 941 

Proctor, Chartrand v. (2 oases). 888 
Producers Mercantile Corpora- 
tion (In re Palmer & Pierce, 

Inc.)-. 523 

Prudden-Winslow Co., Browne v. 419 

Pryer, Matter of 894 

Public Charities, City of New 
York, Comr. of (Complaint of 

Cordes), v. Milau 898 

Public Charities, City of New 
York, Comr. of (Complaint of 

Steinman) v. Tully 930 

Public Service Comm., First 
Dist., Bronx Gas & Electric 

Co. v 554, 931 

Public Service Comm., First 
Dist., Matter of Newtown Gas 

Co. v 895 

Public Service Comm., Second 
Dist., v. Pav on Natural Gas 

Co 534 

Public Service Comm., Second 
Dist., People ex rel. New York 
Central R. R. Co. v 426 



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TABLE OF CASES REPORTED. 



XXX111 



PAQ1. 

Public Works of City of Hudson, 

Commission of, Levine v 351 

Purdy, Sinclair v. (2 oases) .... 308 
Pyrene Mfg. Co., Matter of Dilg 
y 916 

Q. 

Quick, Matter of, v. IUston lee 
Co 676 

R. 

Rabinowitz, Stuppel v 408 

Radt, Steiner v 884 

Ragazinaky, People v 743 

Rail Joint Co., Matter of Anthus 

v 917 

Rakov, Matter of Balduoci v. . 52 
Rand, People ex reL, v. Craig. . . 850 
Raporel S. S. line. Inc., Achille 

Starace & Co., Inc., v 941 

Rasmnssen, Rogers v 881, 941 

Rasmussen, Rogers v. (2 eases). 889 
Rattner, Matter of, v. Schiff... 917 

Raub v. Babcock 920 

Rauh v. White, Ino 939 

Rauth, Matter of, v. Sohaefer & 

8on 951 

Reade v. Halpin 918 

Real Estate Title Ins. & Trust 
Co. of Philadelphia v. Sehren- 

keisen 939 

Reed v. Reed 531 

Reichle v. Perkins 919 

Reid, Sheldon v 892 

Reilly v. Gutmann Silks Cor- 
poration 681 

Reingold v. Fidel" ty Knitting 

Mills 932 

Reis & Donovan, Inc., Matter of 

Keller v 45 

Rhodes, People ex rel., v. Rhodes. 900 

Riccardi v. Sturcke 892, 942 

Rice v. City of Mechankmlle . . . 268 

Richards, Whitlock v 909 

Richmond Light & R. R. Co., 
Piumb v 254 



FAQS. 

Ridgway, VaUiere v 918 

Riehle A Co., Inc., v. London & 

Lancashire Indemnity Co. of 

America 891 

Rieser, Brodsky v 557 

Riley, Bayer v 884 

Riley, People v 885 

Ringler & Co., Morsohauser 

v 907 

Risk v. Risk. 933 

Rizzo, People v 885 

Rizzo v. Rizzo 983 

Roberts v. New York life Ins. 

Co 97 

Robertson v. Federal X-Ray Co., 

Ino 892, 942 

Robertson v. Robertson 938 

Robeson Process Co., Matter of 

Shambeau v 950 

Robin, Kenyon v 921 

Robinson v. Rogers 934 

Robisbn & Co., Inc., v. Kram 

(No. 1) 873 

Robison A Co., Inc., v. Kram 

(No. 2) s 878 

Robson v. Smith 892 

Roche v. Appleby. (2 cases) ... 932 
Rochester Bill Posting Co. v. 

Sorrentino : 923 

Rock v. Rock 59 

Rookwood Mfg. Co., Ino , Fulton 

County Gas & Eleetrio Co. 

v 915 

Rodgers, Knox v 941 

Rodgers, Kriser v 394, 938 

Rodgers & Hagerty, Inc., Bran- 

dorff v 396 

Rogers v. Bay Ridge Theatre 

Corporation 889 

Rogers v. Keeler 889 

Rogers v. Rasmussen 881, 941 

Rogers v. Rasmussen. (2 cases). 889 

Rogers, Robinson v 934 

Rogers v. Village of Port Chester. 

(2 cases) 900 

Rolfe v. Hewitt 952 



App, Div.— Vol. CXCV. iii 



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XXXIV 



TABLE OF CASES REPORTED. 



FAQE. 

Roman Baths Co., O'Neil v. . 890 

891 

Rosenberg, Abrams v 936 

Rosenberg v. Sehoenen 933 

Rosenfeld, Woerz v 19 

Rosenstein v. Clark, Ino 944 

Ross v. Beckers 914 

Ross, Franklin v 921 

Ross, Gold v 721 

Rossbach v. Pennsylvania R. R. 

Co 941 

Rotary Realty Co., Inc., Palmer 

v 903, 906 

Rovalli, People v 900 

Rowe, Simonds v 914 

Royle v. McLaughlin 413 

Rubelman v. Rubelman 935 

Rura' Publishing Co., Inc., v. 

Katzman 934 

Rusher v. Watt 490 

Ryan-Parker Construction Co., 

Chard v 929 

Ryder v. Pindlay 731 

Ryon, Sherry, Inc., v 899 

Ryon v. Wanamaker, New York. 908 

s. 

S. S. Corporation, Bulova v . . . . 886 
Safety Night Light Co., Inc., v. 

Machoinski 904 

Salvador (In re Leslie) 571 

Salvador, Matter of (Hurlbut). . 571 

Salvin Breuer v 901 

Sampson v. Pels Co 487 

Samwiek v. Blinderman & Cohen 

Amusement Co., Inc 884, 894 

896, 938 

Sanford, Cornwell v 922 

Sanger & Jordan v Bobbs- 

MerrillCo :.... 892 

Sauquoit Spinning Co., Matter 

of Hooper v 917 

Savage Arms Corporation, Amer- 
ican La France Fire Engine 

Co., Inc., v 950 

Savino, People v 904 

Scandinavian Import-Export Co., 
Inc., v. Bachman 297 



PAfll. 

Schaefer Brewing Co., Kanner 

v. (2oases) 892 

Schaefer & Son, Matter of Gran- 
sick v 334 

Schaefer & Son, Matter of Rauth 

v 951 

Schanzenbach, Matter of, v. 

Waldorf-Astoria Hotel Co 950 

Soheffer v. International R. 

Co 921 

8cheidt, Polo v 903 

Sohemerhorn, Matter of, v. 

General Electric Co 670 

Sohiff, Matter of Rattner v 917 

Schleicher v. City of New York. 908 

Schmid v. Du Val 937 

Schnatz v. Sohnatz 895, 935 

Schneider, Inc., Hellman v 931 

Sehoenen, Rosenberg v 933 

Schorr, People v 930 

Sohrenkeisen, Real Estate Title 
Ins. & Trust Co. of Phila- 
delphia v 939 

Schwartz v. Gerli & Co., Inc. . . 887 
Sohwartzbaoh v. Westcott Ex- 
press Co 937 

Schwarz, Matter of 194 

Scibilia, Lennox v 895 

Scott, Lemon v 907 

Soudder (In re Littleton) 904 

Soudder, Matter of (Litt'eton) . . 904 
Seabury & Co., Matter of Zim- 

mer v 916 

Selonek v. Interborough Rapid 

Transit Co 930 

Seltzer v. Indelli 890 

Seneca Copper Corporation, 

People ex rel. Smith v 940 

Shambeau, Matter of, v. Robe- 
son Process Co 950 

Shapiro, Pockrose v 918 

Shartle, Goode v 923 

Sheive, Matter of (Turner) 631 

Sheldon v. Knopf 891 

Sheldon v. Reid 892 

Shepard, Glanzer v 934 

Shepard Co. v. Olsen 902 

Sherman, Madonia v 922 



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TABLE OP CASES REPORTED. 



XXXV 



FAOl, 

Shaman-Skater Co., Matter of 

Grillov 362 

Sherrill, People v 893 

Sherry, Inc., v. Ryan 899 

Siege) v. Spear & Co 845 

Silver v. Akron Tire Co. of Dela- 
ware 896 

Silverman v. Ware 887 

Simmons & Co., Ine., v. Dook- 

endorff & Co., Ine 933 

Simon, Parker v 886 

Simon v. Waldinger & Glaser, 

Ine 908 

Simonds v. Rowe. . 914 

Sinclair v. Purdy. (2 cases) 398 

Singer Sewing Machine Co., 

Holland v 891 

Skeets, Matter of, v. Paul 

Smith's Hotel Co 39 

Skinner, Happ v 913 

Slattery v. Jones 886 

Slutzkin v. Gerhard & Hey, Inc. 559 

Smithv.Kelly 915 

Smith, Klein v 870 

Smith v. Lilley 922 

Smith v. Odell 943 

Smith, Robeon v 892 

Smith v. Stanley & MaoGibbons 

Co., Ine 914 

Smith Contracting Co., Matter 

of Struzycki v 945 

Smith, Matter of, v. Keery Co., 

Ine 916 

Smith, People ex rei., v. Seneca 

Copper Corporation 940 

Smyth, People ex rel., v. Craig. . 857 

Snyder, Strobe! v 919 

Soleliac v. Pennsylvania Textile 

Co 932 

Somen Coal Co., Inc., Marrone 

v 903 

Sorrentino, Rochester Bill Post- 
ing Co. v 923 

Spaet, People ex rel., v. Warden 

of City Prison, Kings County. 908 

Spates v. Moses 906 

Spaulding, Beback v 919 



FAGS. 

Spear & Co., Siegel v 845 

Spetz v. Flagella 920 

Springfield Breweries Co. v. 

Miller 918 

St. Lawrence Construction Co., 

Inc., v. State of New York. . . 914 
St. Paul Fire & Marine Ins. Co., 

Amann v 937 

Stafford, People ex rel., v. Travis. 635 

Stahl v. Lehrich 914 

Stanger v. Bernstein 936 

Stanley & MaoGibbons Co., Inc., 

Smith v 914 

Stark & Co., Inc., Yangtsze Ins. 

Assn., Ltd , v 401 

State of New York, American 

Woolen Co. v 698 

State of New York, Callanan v.. 944 
State of New York, McGahan 

v 922 

State of New York, St. Lawrence 

Cons ruction Co., Inc., v 914 

Steen, Inc., Ci y of New York 

v. (Nos. 1,2) 898 

Steers, Harrity v 11 

Stein, People v 943 

Stein, Matter of, v. Williams 

Printing Co 336 

Steinbeck v. Helena 186 

Steinberg, Matter of 935 

Steiner v. Radt 884 

Steinhardter v. Auerbach 893 

Steinman, Complaint of (Comr. 

of Public Charities of City of 

New York), v. Tully 930 

Stephenson, Matter of 914 

Sterling Ceiling & Lathing Co., 

Matter of Nidds v 432 

Stern & Co. v. Avedon & Co., 

Ine 886 

Sternberger, Pfeiffer v 888 

Stevens, Mi ler v 932 

Stiles, People ex rel., v. Harvey. . 918 

Stivers, People v 885 

Stockamore Leather Co. v. 

Duane Shoe Co 947 

Stockfleth v. Cleghorn 908 



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iiiVl 



TABLE OP CASES REPORTED. 



PAOB. 

Stoff, Dorfman v 930 

Stolzenberg, First Nat. Bank of 

Edgewater v 940, 942 

Stone, Gnichtel v 933 

Stone v. Klein 883 

Stone v. Molby Boiler Co., Inc. . 68 
Stone Masons Contractors' Assn., 

Brescia Construction Co. v . . . 647 
Stone & Schleimer, Four Hun- 
dred Thirty-four Broadway 

Realty Corporation v 894 

Strasbourger v. Leerburger 480 

Strobel v. Snyder 919 

Struzycki, Matter of, v. Smith 

Contracting Co 945 

Stuppel v. Rabinowitz . . . 498 

Sturcke, Riccardi v 892, 942 

Suderov, Matter of Goldmuntz 

v 935 

Sullivan, Dorsen v 941 

Sullivan, Matter of 905, 942 

Sullivan v. Oppermann. . . .* 944 

Sullivan (In re Leonard & Co., 

Inc.) 934 

Sunrise Lumber Co., Inc., v. 

Biery Lumber Co 170 

Susquehanna Silk Mills v. 

Abrams 933 

Susquehanna Steamship Co., 

Inc., v. Andersen & Co., Inc. . 161 
Svolos, Matter of, v. Marsch & 

Co 674 

Swenson v. Trowbridge 310 

Sykes v. Degnan 939 

Sylvester, DiMenna & DePaolo, 

Inc., v 939 

Symington v. Haxton 85 

Syracuse & Suburban R. R. Co., 

Matter of (Pine St.) 924 

Szerlip, People ex rel., v. En- 
right 900 



Taft, Matter of, v. Champlain 

Silk Mills 917 

Tanenhaus, Lipps v 883 

Tarbell v. Banks 918 



FAOI. 

Tassell & Fairbanks, Matter of 

Peokv 916 

Taya,.Dorff v 886 

Taylor v. Embury 633 

Taylor Co., Inc., Universal Steel 

Export Co., Inc., v 883 

Temple Bros., Matter of, Wood- 
cock v 951 

Teneo Co., Inc., Cuyler Realty 

Co. v 886 

Teplitz v. Bloomingdale 15 

Terminal & Town Taxi Corpora- 
tion, Aufiero v 940 

Terry v. Terry 900 

Thayer, Matter of 935 

Thomas & Buckley Hoisting Co., 

Blake v 931 

Thompson v. Fort Miller Pulp 

& Paper Co 271 

Thompson, Maxwell v 616 

Thomstorff, link v 884 

Tierney v. Perkins 918 

Tillamook Bay Fish Co., Union 

Smoked Fish Co., Inc., v 893 

Title Guarantee & Trust Co., 

Empire Development Co. v. . 894 
Torisco v. Lehigh Valley R. R. 

Co 915 

Towne v. Bliss Co 908 

Townsend, LeRoy v 913 

Transatlantic Trust Co., Bis- 

choffv 937 

Transcontinental Engineering 

Corporation v. Conkhn 943 

Transit Construction Commis- 
sioner, Matter of 897 

Travis, People ex re . Stafford 

v 635 

Tribune Assn., Gruening v 892 

Tri-County Light & Power Co. 

In re Galvin) 950 

Trowbridge, Swenson v 310 

Tully, Commissioner of Public 
Charities, City of New York 
(Complaint of Steinman), V. . . 930 
Tuomey, People ex rel. Gilman 
v 944 



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TABLE OP CASES REPORTED. 



xxxvu 



FAQS. 

Turin Garage & Supply Co., 

Matter of McOoey v 486 

Turner (In re Sheive) 681 

Turner-Looker Co. v. Aprile. . . 706 

Turnure v. Breitung 200 

Tyroler, Matter of 905 

U. 

Udoviehky v. Baoheff 860 

UUrey, Aresoni v 803 

Underhill, Matter of 898 

Union Dime Sav'ngB Bank, 
Conlon r 600 

Union Exchange Nat. Bank of 
New York v. Joseph 805 

Union Smoked Fiih Co., Inc., v. 
Tillamook Bay Fish Co 893 

United States Fidelity & Guar- 
anty Co., Montgomery v 938 

United States Mortgage & Trust 
Co. y. liberty Nat. Bank 890 

United States Shipping Board 
Emergency Fleet Corporation, 
Ingersoll-Rand Co. v 838 

United States Title Guaranty Co. 
v. Brown 738 

Universal Steel Export Co., Inc., 
v. Taylor Co., Inc 883 

V. 

Van Benthuyaen Co., Matter of 

Hoffman v 76 

Van Buren, Erstovio v 915 

Van Pelt v. Capron 909 

Van Praag, Brennan v 884 

Van Sohoiek, Matter of, v. Fet- 
ters Co., Inc '951 

Valley Farms Co. v. City of 

Vonkers 943 

Valliere v. Ridgway 918 

Village of New Paltz v. New 
Paltz, Highland & Pough- 

keepsie Traction Co 952 

Village of Port Chester, Jordan 

v 898 

Village of Port Chester, Rogers 
v. (2 oases) 900 



Village of Warsaw v. Pavilion 

Natural Gas Co 716 

Vom Hofe v. Vom Hate 900 

Vogue Co., Harris v 887 

w. 

Waohtel v. Mosler & Co 240 

Waldinger A Glaser, Inc., Simon 

v 908 

Waldorf-Astoria Hotel Co., Mat- 
ter of Sohanzenbaoh v 950 

Wall v. International R. Co 685 

Wanamaker v. Wyoming Valley 

Fire Ins. Co 921 

Wanamaker, Inc., v. City of 

New York 940 

Wanamaker, New York, Ryon v. 908 

Wandling, Felsinger v 891 

Ward & Gow, Matter of Krinsky 

v 915 

Warden of City Prison, Kings 
County, People exrel. Spaet v. 908 

Ware, Silverman v 887 

Warner v. Brill 64 

Warnick, Orville Realty Co., 

Inc., v 886 

Warake, People ex rel., v. 

Wamke 943 

Waronen v. McMullen Co 929 

Warsaw, Village of, v. Pavilion 

Natural Gas Co 716 

Waterson, Winslow v 888 

Watkinson, Matter of, v. Hotel 

Pennsylvania 624 

Watt, Rusher v 490 

Waxman v. Landau 893 

Webb, Daly v 891, 942 

Weeks v. Miller 909 

Wegmann v. City of New York . 540 

Weigel v. Cook 919 

Weinberg v. Lowenstein 891 

Weinberg, Matter of, v. Ehren- 

berg Brass Mfg. Co 915 

Weinberger v. American Rail- 
way Express Co 888 

Weintraub v. Erase 807 

Weinz v. Weinz 919 



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xxxvm 



TABLE OF CASES REPORTED. 



Weiser v.. Emmerman & Bau- 

moehl Co 940 

Weissman v. Davis 888 

Welcome, Baker v 913 

Wells, New York Income Cor- 
poration v. (2 cases) — 136, 941 
Wessing, Matter of, v. Oneita 

Knitting Mills 951 

West Shore R. R. Co., Greiner 

v 919 

Westcott Express Co., Schwartz- 
bach v 937 

Weston, People v 885 

Wightman, Hier v 923 

Whitaker, Matter of 905 

White v. Panning 906 

White, Keep v 736 

White, Inc., Rauh v 939 

Whitlook v. Richards 909 

Whitney, Lafrinz v 131 

Whitson, People v 910 

Whittemore, Matter of, v. Bing- 
hamton Light, Heat & Power 

Co 917 

Wickes (In re HoughtaJing) 915 

Wiernicki, Lazarus v 830 

Wiesenthal, People ex rel., v. 

Dunne 225 

Wightman, Hier v 920 

Wilbraham v. Murphey 930 

Wilke, Di Angelo v 887 

Williams Printing Co., Matter 

of Stein v 336 

Willie v. Luczka 919 

Wilmes v. Fournier * . . . 919 

Winslow v. Waterson 888 

Winter, Muller-Fox Brokerage 
Co. v 940 



PAM. 

Wise v. Director-General of 

Railroads 889 

WithereU v. Kelly 227 

Woerz v. Rosenfeld 19 

Wolfson v. Brooklyn Trust Co. . 934 

Wood v. Brunnett 923 

Woodcock, Matter of, v. Temple 

Bros 951 

Woods Theatre Co., Matter of 

O'Sullivanv 609 

World Wide Trading Co., Inc., 

Kraemer v 305 

Wostein, Coler (Complaint of 

Beckman) v 933 

Wright, People v 885 

Wyoming Valley Fire Ins. Co., 

Wanamaker v 921 

Y. 

Yadwin v. Consolidated Tea Co. 938 
Yangtsze Ins. Assn., Ltd., v. 

Stark & Co., Ino 401 

Yanklowitz, Hines v 915 

Yeannakopoulos, Matter of 261 

Yonkers, City of, Leonhardt v. . 234 
Yonkers, City of, Valley Farms 

Co. v 943 

Yorkville Motor Co., Inc., v. 

Croner 895 

Young, People ex rel. Nassoit 

v 513 

Z. 

Zecchini v. Mayer 423 

Zimmer, Matter of, v. Seabury & 

Co 916 

Zimmerman, Kaston v 930 

Zundt v. Cranford Co 900 



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TABLE OF OASES CITED. 



A. »Aoa. 

Abrams v. United States 250 U. 8. 616, 627 790 

Ackerman v. Rubens 167 N. Y. 405 711 

Albany County SavingB Bank v. 

MeCarty 149 N. Y. 71, 80, 83 62, 63 

Aldridge v. Johnson 7 E. A B. 885 219, 222 

Allen v. Allen 125 App. Div. 838. . . 599, 602, 603 

Allen v. Mayer 73 N. Y. 1 21, 22 

Allen v. McConihe 124 N. Y. 342 508 

Allen v. Patterson 7 N. Y. 476, 478 414 

Allen v. St. Louis Ins. Co 85 N. Y. 473 156 

Allied Silk Manufacturers, Inc., v. 

Erstein 168 App. Div. 283 367 

Alsing Co. v. New England Quartz 

Co 66 App. Div. 473 882 

Alterman v. Home Ins. Co 112 Misc. Rep. 445 154 

American Aniline Products, Inc., v. 

Nagase & Co., Ltd 187 App. Div. 555 712, 877 

Amory v. Washington Steamboat Co., 

Ltd 120 App. Div. 818, 821 409 

Andrews v. Cheney 62 N. H. 404 222 

Appleton v. Marx 191 N. Y. 81 761, 76&-771 

Armour Packing Co. v. Edison El. 

Illuminating Co 115 App. Div. 51 6 

Armstrong v. Clavering 27 Beav. 226 135 

Ashton Holding Co., Inc., v. Levitt. . 191 App. Div. 91, 94 412 

Atherton v. Athertpn 82 Hun, 179; affd., 155 N. Y. 

129 605 

Atkinson v. Bell 8B.&C. 277 219 

Attorney-General v. Commissioner of 

Insurance 148 Mich. 566 183 

Auburn Draying Co. v. Wardell 227 N. Y. 1 804 

Aultman & Taylor Co. v. Syme 163 N. Y. 54, 57 359 

Axebod v. New York City R. Co. . . . 109 App. Div. 87 691 

B. 

Bailey v. Kincaid 57 Hun, 516 946 

Baker v. Close 204 N. Y. 92 913 

Baker v. Drake 53 N. Y. 211 507, 508 

Baldwin v. Canfield 26 Minn. 43 248 

Bamberg v. International R. Co 53 Misc. Rep. 403, 406 260 

Bank v. Commissioners 116 N. C. 214 286 

Bank of California v. Webb 94 N. Y. 467, 471 252 

xxxix 



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xl TABLE OF GASES CITED. 

PAOI. 

Bank of Kentucky v. Wister 2 Pet. 318, 323 843 

Bank of Middletown v. Rutland & 

Washington R. R. Co 1 Shaw (Vt.), 159 249 

Banque Russo-Asiatque-London v. 

U. S. Shipping Board, E. F. C 266 Fed. Rep. 897 844 

Barber v. Ellingwood, No. 2 137 App. Div. 704, 714 929 

Barings v. Dabney 19 Wall. 1. 843 

Barnet v. National Bank 98 U. S. 565 17 

Barnett v. Selling 70 N. Y. 492 122 

Barrett Mfg. Co. v. Sergeant 149 App. Div. 1, 4 415 

Bath Gas light Co. v. Claffy 151 N. Y. 24 304 

Beardslee v. Ingraham 183 N. Y. 411, 417 167 

Beattie v. Callanan. . ., 82 App. Div. 7 657, 658 

Becker v. Church 115 N. Y. 562 869 

Becker v. Koch 104 N. Y. 394 351 

Beckmann v. Oelerich & Son 174 App. Div. 353 807 

Beers v. Metropolitan St. R. Co 104 App. Div. 96 692 

Behrens v. Sturges 121 App. Div. 746 950 

Belden v. Brown 77 Misc. Rep. 282 333 

Belt v. American Central Ins. Co 29 App. Div. 546; affd., 163 

N. Y. 555 183 

Beman v. Todd 124 N. Y. 114 950 

Bennett v. Leeds Mfg. Co 110 N. Y. 150 831 

Bennett v. Smith 21 Barb. 439 606 

Bers v. Erie R. R. Co 225 N. Y. 543 546 

Bertholf v. O'Reilly 74 N. Y. 509, 519 672 

Beveridge v. N. Y. E. R. R. Co 112 N. Y. 1, 27 324 

Bickford v. Bickford 74 N. H. 448 696, 697 

Bigler v. Morgan 77 N. Y. 312, 318 102 

Bihin v. Bihin 17 Abb. Pr. 19 605 

Birmingham v. Westinghouse Electric * 

& Mfg. Co 180 App. Div. 48 78 

Birnbaum v. May 58 App. Div. 76 508 

Bishop v. Crawshay 3 B. & C. 415 219 

Bliss v. Winters 40 App. Div. 622 333 

Blowers v. Sturtevant 4 Den. 46 606 

Bog Lead Co. v. Montague 10 C. B. (N. S.) 481 211, 220 

Boice v. Jones 106 App. Div. 547 308 

Boltan v Barrett 172 N. Y. Supp. 457 498 

Booth v. Baptist Church 126 N. Y. 215 29 

Booth v. Spuyten Duyvil Rolling 

Mill Co 60 N. Y. 487, 492, 495 409, 410 

Borrowe v. Corbin 31 App. Div. 172; affd., 165 

N. Y. 634 826 

Bossert v. Dhuy 221 N. Y. 342 804 

Boston v. Ocean Steamship Co. of 

Savannah 197 Mass. 561 737 

Boyd v. Schlesinger 59 N. Y. 301 579 



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TABLE OF OASES CITED. xli 

PAGI. 

Brady v. Holbrook, Cabot & Rollins 

Corp 189 App. Div. 406 76 

Brainerd v. State of New York. 74 Misc. Rep. 100, 106. 704 

Brassard v. Delaware & Hudson Co. . 186 App. Div. 647 614, 616 

Brauer v. New York City Inter- 
borough R. Co 131 App. Div. 682 497 

Braun v. Buffalo General Electric Co.. 200 N. Y. 484, 496 612 

Brick v. Brick 66 N. Y. 144. . 847 

Briscoe v. Bank of Commonwealth 

of Kentucky 11 Pet. 267 843 

Bristol Mfg. Corp. v. Arkwright 

Mills 213 Mass. 172, 176 212 

Bronx Gas & Electric Co. v. Pub. 

Serv. Comm 190 App. Div. 13, 22 6, 7 

Brooklyn Borough Gas Co. v. Pub. 

Serv. Comm 190 App. Div. 901 7 

Brown v. Blanche Realty Co 184 App. Div. 33 88 

Brown v. Clark 77 N. Y. 369 30 

Brown v. Cleveland Trust Co 139 App. Div. 932. . . . 466, 473, 477 

Brown Paint Co. v. Bernhardt 210 N. Y. 162 247 

Browne v. Hare 3 H. A N. 484; 4 id. 822. . 210, 219 

Brushaber v. Union Pacific R. R 240 U. 8. 1 642 

Bubeck v. Farmers' Loan & Trust 

Co 180 App. Drv. 642 379 

Buchanan v. Belsey 66 App. Div. 68 848 

Buchholtz v. Florida East Coast R. 

Co 59 App. Div. 666 373 

Buck v. Cleveland 143 App. Div. 874 25 

Bulova v. Barnett, Inc 193 App. Div. 161 86 

Burden v. Burden : 159 N. Y. 287 249 

Burger v. Burger Ill N. Y. 623 569 

Burkhardt v. Sanford 7 How. Pr. 329, 334 960 

Burns v. Winchell 44 Hun, 261 634 

Buse v. National Ben Franklin Ins. 

Co 96 Misc. Rep. 529; affd., 177 

App. Div. 948; 226 N. Y. 

589 183 

Bush Brothers Lumber & Milling Co. 

v. Eastwood 132 8. W. Rep. 389, 392 135 

Bushnell v. Leland 164 U. S. 684 622 

Butcher v. Geissenhainer 125 App. Div. 272 632 

Butler v. Manhattan R. Co 143 N. Y. 417 497 

Butterworth v. Crawford 46 N. Y. 349 189 

c. 

CaccioppoG v. Lemmo 152 App. Div. 660 63 

Calcutta Co. v. De Mattos 33 L. J. (Q. B.) 214 219 

CaDanan v. State of New York 113 Misc. Rep. 267 945 



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xlii TABLE OP CASES CITED. 

PAGE. 

Calligan v. Haskell 143 App. Div. 574. . 348 

Cameron-Hawn Realty Co. v. City of 

Albany 207 N. Y. 377, 381, 382. . . 546, 547 

Campbell v. Clausen-Flanagan Brew* i r? 

ery 183 App. Div. 499, 500 677 

Campbell v. Wright 118 N. Y. 594 507, 508 

Campione v. Eckert 110 Misc. Rep. 703 809 

Canada Southern R. Co. v. Inter- 
national Bridge Co 8 App. Cas. 723 10 

Caponigri v. Altieri 165 N. Y. 255 17 

Carnegie Trust Co. v. Chapman 153 App. Div. 783 18 

Carson v. Village of Dresden 202 N. Y. 414, 418 269 

Carthage Tissue Paper Mills v. Village 

of Carthage 200 N. Y. 1, 14 477 

Casey v. Galli. .- 94 U. S. 673. . . 622, 623 

Catholic F. M. Society v. Oussani. . . 215 N. Y. 1 248 

Caven v. City of Troy 15 App. Div. 163 732 

Cerlian v. Bacon 155 App. Div. 118, 123 832 

Chambers v. Chambers 61 App. Div. 299 343 

Chater v. Beckett 7 T. R. 201 214 

Chelentis v. Luckenbaoh Steamship 

Co 247 U. S. 372 737 

Cheney v. Price 90 Hun, 238 348 

Chesbrough v. Home Ins. Co 61 Mich. 333 183 

Chicago & N. W. R. Co. v. Wilcox. . 116 Fed. Rep. 913 753 

Chimera v. International Ice Cream 

Co 193 App. Div. 538, 539. . . 335, 434 

China & Japan Trading Co., Ltd., v. 

Provand 155 App. Div. 171 308 

Choate v. City of Buffalo 39 App. Div. 379. , 630 

Christian & Daniel v. Niagara Fire 

Ins. Co 101 Ala. 634 183 

Christopher v. Norvell 201 U. S. 216. 622 

City of Carlisle, The 39 Fed. Rep. 807 737 

City of New York v. McCarthy 171 App. Div. 561 769 

City of New York v. McLean 170 N. Y. 374, 379 640 

City of New York v. New York City 

R. Co 193 N, Y. 648 477 

City of St. Louis v. St. Louis Gaslight 

Co 11 Mo. App. 237 866 

Clapp v. Fullerton 34 N. Y. 197 343 

Clark v. Douglass 5 App. Div. 547 205, 206 

Clement v. United States 149 Fed. Rep. 305 623 

Coatsworth v. Lehigh Valley R. Co. . 156 N. Y. 457 12 

Cohen v. Margolies 192 App. Div. 217 379 

Cohen v. Rothschild 182 App. Div. 408, 417, 418. ... 508 

Colon v. American Linoleum Mfg. 

Co 184 App. Div. 734 914 



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TABLE OF CASES CITED. xliii 



Columbus Railway & Power Co, v. 

Columbus 249 U. S. 399 720 

Colyer v. Skeffington 265 Fed. Rep. 17 790 

Comey v. United Surety Co 217 N. Y. 268 770 

Commercial Bank v. Sherwood 162 N. T. 310, 318, 319 267 

Commercial Nat. Bank v. Zimmer- 
man 186 N. Y. 210 812, 813 

Commonwealth v. Peaslee 177 Mass. 267 790 

Commonwealth Finance Corp. v. 

Landis, E. F. C 261 Fed. Rep. 440 844 

Conde v. City of Schenectady 164 N. Y. 258 238 

Conrad v. Conrad 124 App. Div. 780 598, 607 

Consolidated Rubber Tire Co. v. 

Firestone Tire A R. Co 135 App. Div. 805 306 

Constant v. Rector, Wardens & 

Vestry of St Albans Church 4 Daly, 305 248 

Continental Nat. Bank v. Nat. Bank 

of Commonwealth 50 N. Y. 583 233 

Cookv. White 43 App. Div. 388; affd., 167 

N. Y.588 29, 30 

Cooke v. Millard 65 N. Y. 352, 366 210 

211, 214, 218 

Cooke v. Tombs 2 Anst. 420 214 

Coombs v. Bristol & Exeter R. Co. . . 3 H. A N. 510 221 

Cooper-Sneil Co. v. State of New 

York 193 App. Div. 192; revd., 230 

N. Y. 249 703 

Cosulich v. Standard Oil Co 122 N. Y. 118,128 260 

Cotting v. Kansas City Stock Yards 

Co 183 U. S. 79, 96 10 

Cottone v. Murray's 138 App. Div. 874 595 

Crackanthorpe v. Sickles 156 App. Div. 753, 755 550 

Craven v. International R. Co 100 App, Div. 157 692 

Crawford v. Kastner 26 Hun, 440 869 

Crim v. Starkweather. 88 N. Y. 339 812 

Crinieri v Gross 184 App. Div. 817 il2 

Crossett v. Carleton 23 App. Div. 366 83 

Crotty v. Brie R. R. Co 149 App. Div. 262 12 

Crown Electric HI. Co., Inc., v. 

Chiariello 106 Misc. Rep. 511 712 

Culhane v. Economical Garage Co. . . 188 App. Div. 1 Ill 

Curran v.Galen... 152 N. Y. 33 652 

653, 655, 656, 658 

Curran v. State of Arkansas 15 How. (U. S.) 304 843 

Curry v. City of Buffalo 135 N. Y. 366, 369, 370 269 



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xliv TABLE OF OASES CITED. 

D. PAOT. 

Dailey v. Standard Shipbuilding 

Corp. . . 179 App. Div. 647 489 

Dambmann v. Sehulting 75 N. Y. 66, 64 648 

Danes v. State of New York 219 N. Y. 67, 72 273, 275 

Darrington v. Bank of Alabama 18 How. (U. &) 12. 843 

Dartmouth College v. Woodward. ... 4 Wheat 518 619, 620 

Davids Co. v. Hoffmann-LaRoehe 

Chemical Works 178 App. Div. 855 646 

Davies v. Harvey Steel Co 6 App. Div. 166 247 

Davis v. Dodge 126 App. Div. 469 594 

Davis v. Moore 130 Ark. 128 681, 623 

Davis Brothers Realty Corp., Inc., v. 

Harte 112 Misc. Rep. 473 405 

Days v. Trimmer & Sons, Inc 176 App. Div. 124 677 

Debs v. United States 249 U. S. 211 790 

Deering v. Reilly 167 N. Y. 184, 194 645 

Delafleld v. Armsby Co 131 App. Div. 572; affd., 199 

N. Y. 518 409 

Delafleld v. Parish 25 N. Y. 9, 97 344, 348 

Delso v. Crucible Steel Co 21 State Dept. Rep. 590 290 

Demarest v. House 91 Hun, 290 926 

Den v. Young 12 N. J. Law, 303 12 

Dent v. Ferguson 132 U. S. 64 927 

DiMenna v. Cooper & Evans Co 220 N. Y. 391, 397 670 

Dickerson v. Colgrove 100 U. S. 578, 580 231, 232 

Dickie v. Van Vleek 5 Redf. 286 344 

Dobert v. Troy City R. Co 91 Hun, 28 692 

Dobie v. Armstrong 160 N. Y. 584 344 

Dollar Co. v. Canadian C. & P. Co. . 220 N. Y. 270, 277 171 

Donovan v. Alliance Electric Co 191 App. Div. 303 678 

Dorb v. Stearns & Co 180 App. Div. 138 914 

Douglaston Realty Co. v. Hess 124 App. Div. 508, 509 412 

Drew v. Thaw 235 U. S. 432, 438 793 

Duncan v. Guest 5 Redf, 440 669 

Dunham v. Pettee 8 N. Y. 508 710 

Dunham v. Troy Union R. R. Co. . . 3 Keyes, 543 122 

Dunn v. Arkenburgh 48 App. Div. 518 623 

Durham v. Stuyvesant Ins. Co 112 Misc. Rep. 440 186 

Duryea v. Auerbach 164 App. Div. 44 4 

E. 

Ebin v. Equitable life Assurance 

Society 177 App. Div. 458, 459 402 

Edsall v. Edsall 179 App. Div. 481, 485; affd., 

222 N. Y. 651 626 

Eld v. Gorham 20 Conn. 8 286 



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TABLE OF CASES CITED. xlv 



Elliott v. Brooklyn Heights R. R. 

Co 127 App. Dhr. 800 268, 259 

BppKey v. Kennedy 131 App. Div. 1 326 

Erwin v. Collier 2 Mont. 605 866 

Everett v. De Fontaine 78 App. Div. 219 306 

Svenon v. Powers 89 N. Y. 527 594 

F. 

Fallon ▼. Swackhamer 226N. Y. 447 436 

Farley ▼. Seoor . 167 App. Div. 80 i 809 

Farmero' Feed Co. v. Soottish Union 

Ins. Co 173N.Y.241 176, 183 

Farnoomb v. Denver 252 U. S. 7 239 

Farrelly v. Sohaettter 143 App. Dhr. 273; affd., 207 

N.Y.644 657 

Faxton v. Faxton 28 Mioh. 159 231 

Feit v. Holzapfel 104 Misc. Rep. 73 513 

Ferry v. South Shore Growers & 

Shippers Assn 189 App. Div. 542 210, 712 

Field v. Clark 143 U. S. 649 285 

Field v. Field 9 Wend. 394 522 

Reld v. Sibley 74 App. Div. 81 949 

Finch School v. Finch 144 App. Div. 687 663 

Firemen's Fond Ins. Co. v. Pekor. . . 106 Ga, 1 183, 185 

Fisk v. Fisk 6 App. Div. 432. . . 534 

Ford v. Harrington 16 N. Y. 288 927 

Fort Plain Bridge Co. v. Smith 30 N. Y. 44 275, 276 

Fosdick v. Metal ShelterCo., Inc. . . 223 N. Y. 700 264 

Foeket v. Buschmann Co 193 App. Div. 342, 344 364 

Fox v. Warner^Juinlan Asphalt Co. . 204 N. Y. 210 903 

Fragano v. Long 4 B. & C. 219 219 

Franken-Kareh Corp. v. Castriotis. . . 195 App. Div. 529 308 

Frazer v. Weld 177 Mass. 513 135 

Freeman v. Miller 157 App. Div. 715, 719 308 

Frethey v. Durant 24 App. Div. 58 308 

Frey v. McLoughlin Bros., Ine 187 App. Div. 824. . ., 78 

Frisbie & Stansfield Knitting Co., Inc., 

v. 8tate of New York 189 App. Div. 351 704 

Frohwerk v. United States 249 U. S. 204 786 

Fuller v. Bradley Contracting Co ... . 183 App. Div. 6; affd., 229N. Y. 

605 904 

Fulton v. Krull 200 N. Y. 105, 110 729 

Fulton light, H. & P. Co. v. State 

of New York 200 N. Y. 400 273, 704 

Funger v. Brooklyn Bottle Stopper 

Co 132 App. Div. 837 932 



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xlvi TABLE OF OASES CITED. 

G. FAOB. 

Gallagher v. N. Y. C. R. R. Co 180 App. Div. 88; affd., 222 

N. Y.649 915 

Gates v. Bowers 169 N. Y. 14 634 

Gause v. Commonwealth Tnut Co. . . 196 N. Y. 134, 153-155 304 

Geneva & Waterloo R. Co. v. N. Y. C. 

& H. R. R. R. Co! 163 N. Y. 228 947 

Gerber v. State Bank 167 App. Div. 263 511 

Gertner v. Glens Falls Ins. Co 193 App. Div. 836 155 

Gibbons v. Ogden 9 Wheat. 1, 188 793 

Gilbert v. Finch 173 N. Y. 455 66 

Ginsburg v. Woolworth Co 176 App. Div. 882 4 

Gittings v. Russel 114 App. Div, 405, 407, 408. . . 511 

Glyn v. Title Guarantee & Trust Co. . 132 App. Div. 859 306 

Goldberg v. Borden's Condensed 

Milk Co 185 App. Div. 222; affd., 227 

N. Y. 465 20 

Goldman v. United States 245 U. S. 474 787 

Goldsmith v. Prendergast Const. Co.. 252 U. S. 12 237 

Gompers v. Bucks Stove & Range 

Co 221 U. S. 418, 439 787 

Goes v. Warp Twisting In Machine 

Co 133 App. Div. 122 865 

Gosselin Corporation v. Mario Tap- 

parelli fu Pietro, Inc 191 App. Div. 580 306 

Gould v. Hudson River R. R. Co. . . . 6 N. Y. 522 276 

Gould v. Springer 206 N. Y. 647.. . 379 

Gould Coupler Co. v. U. S. Shipping 

Board, E. F. C 261 Fed. Rep. 716 843 

Graffe v. Art Color Printing Co 191 App. Div. 669 612 

Graham v. Camman 5 Duer, 697, 699 415 

Graham v. Davis 130 Ark. 128 621, 623 

Graham v. James 7 Robt. 468 869 

Grannis v. Stevens 216 N. Y. 583 724 

Granoff v. Korpus 182 N. Y. Supp. 136. 809 

Grassi Contracting Co. v. Bennett. . . 174 App. Div. 244 655, 656 

Gray v. Shepard 147 N. Y. 177 724 

Great Northern R. Co. v. Fowler. ... 136 Fed. Rep. 121 754 

Greenfield v. Greenfield 161 App. Div. 573 432 

Greenwood v. Freight Co 105 U. 8. 13, 20, 21 620 

Gregory v. Clark 53 App. Div. 74, 75 38 

Gregory v. Manhattan Briar Pipe 

Co 174 App. Div. 106 379 

Griflen v. Manioe 166 N. Y. 188, 194. ... 256, 258-260 

Griswold v. Hart 205 N. Y. 384 350 

Grossman v. Schenker 206 N. Y. 466 84 

Gruman v. Smith 81 N. Y. 25 508 



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TABLE OP CASES CITED. xlvii 



H. FA09. 

Hagan v. Sone 174 N. Y. 317 29 

Hall v. Herter Brothers 83 Hun, 19 249 

Hallenborg v. Greene 66 App. Div. 590 865 

Handy v. Butler 183 App. Div. 369 944 

Hankins v. Baker 46 N. Y. 666 710 

Happel v. Brethauer 70 111. 166 286 

Harbison v. Propper 112 Misc. Rep. 588 712 

Hardie v. Boland Co 205 N. Y. 336 257, 259 

Harley v. Buffalo Car Mfg. Co 142 N. Y. 31 ' 90 

Harrington Co. v. Horster 89 N. J. Eq. 270 730 

Harris v. Brooks 21 Pick. 195 231 

Harris v. Prink 49 N. Y. 24 634 

Harris v. Gossard Co., Inc 194 App. Div. 688 887 

Harrison v. N. Y. C. & H. R. R. R. 

Co 195 N. Y. 86, 89 612 

Hart v. Goadby 138 App. Div. 160 304 

Hartley v. James 50 N. Y. 38, 44 101 

Hartwig v. American Ins. Co 160 App. Div. 60 183 

Hathaway v. Clendening Co 135 App. Div. 407 308 

Havana City R. Co. v. CebaUos 49 App. Div. 421 333 

Hawkins v. Hawkins 193 N. Y. 409 606 

Hayden v. Demets 53 N. Y. 426 710, 711 

Heeg v. Licht 80 N. Y. 580 275 

Herald Square Realty Co. v. Saks & 

Co 215 N. Y. 427 378 

Hernon v. Holahan 182 App. Div. 126 677 

Herrick v. Woolverton 41 N. Y. 581 812 

Herrman v. Merchants' Ins. Co 81 N. Y. 184 156 

Hess v. New York Press Co 26 App. Div. 73 862 

Heyman v. Heyman 119 App. Div. 182 528 

Hickman v. Cabot 183 Fed. Rep. 747, 749 546 

Higgins v. Carter's Ink Co 178 App. Div. 889 379 

Higgins v. Eagleton 155 N. Y. 466, 472. . . 101, 105, 107 

Higgins v. Ridgway 153 N. Y. 130 724 

Hill v. Curtis 154 App. Div. 662 308 

Hiscock v. Lacy 9 Misc. Rep. 578 324 

Hodgdon v. Burleigh 4 Fed. Rep. Ill 729 

Honolulu R. T. Co. v. Hawaii 211 U. S. 282 10 

Horn v. Bonne 96 Md. 8 866 

Horn v. Pullman 72 N. Y. 269 348 

Horning v. District of Columbia 254 U. 8. 135 794 

Horst v. Montauk Brewing Co 118 App. Div. 300 710 

Horwood v. Heffer 3 Taunt. 421 606 

Houghton v. Bachman 47 Barb. 388 126 

Houghton v. Houghton 34 Hun, 212 751 

House v. WaJch 144 N. Y. 418 724 

Howard v. Breitung 172 App. Div. 749 86 



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xlviii TABLE OF CASES CITED, 



Howden & Co. of America, Inc., v. 
American Condenser & Engineer- 
ing Corp 194 App. Div. 164 882 

Hudson Trading Co. v. Durand 194 App. Div. 248 595 

Hunt v. Van Alstyne 25 Wend. 605 285 

Hurd v. Taylor. , 181 N. Y. 231 303 

Hurt v. Miller 120 App. Div. 833; affd., 190 

N. Y. 553 508 

L 

Ideal Cash Register Co. v. Zunino. . . 39 Misc. Hep. 313 v 712 

Ideal Pump & Mfg. Co. v. American 
Central Ins. Co 152 S. W. Rep. 408 155 

Industrial & General Trust v. Tod. . . 170 N. Y. 233 949 

Ingram Day Lumber Co. v. U. S. 
Shipping Board, E. F. C 267 Fed. Rep. 283 844 

Insana v. Nordenholt Corporation. . . 193 App. Div. 1, 929 913 

Insurance Co. v. Dutcher 95 U. S. 269, 273 477 

Insurance Co. v. Mowry 96 U. S. 547 231 

International Harvester Co. v. Ken- 
tucky 234 U. S. 579 172 

Iroquois, The 194 U. S. 240 737 

Ivison v. Ivison 80 App. Div. 599 350 

J. 

Jackson v. LewiB 17 Johns. 475 793 

Jacobs v. Cohen 183 N. Y. 207, 211, 212 655 

656, 658 

Jacobs v. McGuire 77 Misc. Rep. 119 380 

Jacobs v. Monaton It. I. Corp 212 N. Y. 48 301 

Jemison v. C. S. Bank 122 N. Y. 135 304 

Jenner v. Smith L. R. 4 C. P. 270, 278 219, 220 

Jessup v. Carnegie 80 N. Y. 441 621 

Johnson v. Blair 132 Ala. 128 231 

Johnson v. Johnson 6 Johns. Ch. 163 598 

Johnson v. Standard Transportation 

Co 188 App. Div. 934 738 

Jordan v. Underhill 91 App. Div. 124 308 

Jordan & Co. v. Collins & Co 107 Ala. 572 249 

K 

Eackel v. Serviss 180 App. Div. 54 42 

Kade v. Greenhut Co., Inc 193 App. Div. 862 951 

Kain v. Larkin . 141 N. Y. 144, 150 12 

Kaiser v. Kaiser 192 App. Div. 400 598 

Kaminsky v. Kalsko Finance Corp. . . 191 App. Div. 412, 415 413 

Kaston v. Zimmerman 192 App. Div. 511 930 

Kay v. Whittaker 44 N. Y. 565, 576 333 



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TABLE OF CASKS CITED. zliz 

VAGI. 

Keating y. American Brewing Co 62 App. Div. 601 804 

Kern v. Tupper 52 N. Y. 560 220 

Kelly v. Muloahy 131 App. Div. 630 946 

Keir v. Mount 28 N. T. 650 22 

Keesler & Co. v. Veio 142 Mtcfc. 471 710 

Kidd v. MeConniok '. . . 83 N. Y. 301, 307. . . . 761,760, 770 

KingB County lighting Co. v. Wood- 
bury 177 App. Div. 451; rob nom. 

Kings County Lighting Co. 
v. Lewis, 110 Miso. Rep. 

204-260 557 

Kinsey v. Kinsey 124 N. Y. Supp. 30 605 

Kirchner v. New Home Sewing 

Machine Co 135 N Y. 182 752 

Kissam v. Kissam 21 App. Div. 142, 145 30 

Kittinger v. Buffalo Traction Co. . . . 160 N. Y. 377 286 

Kleinstein v. Gonsky 134 App. Div. 266 406 

Klinck v. Colby 46 N. Y. 427, 431 422 

Knapp v. Barrett M0 App. Div. 877; revd., 216 

N. Y. 226,230 012 

Knickerbocker Ice Co. v. Stewart. . . 253 U. 8. 140 204, 205 

Knickerbocker Trust Co. v. Iselin. . . 100 App. Div. 688 621 

Knight v. Brown 162 App. Div. 438. . . : 050 

Knight v. Saokett & Wilhelms Iith. 

Co 31 Abb. N. C. 373; affd., 141 

N. Y.404 313 

Kohn & Baer v. Ariowitseh Co., Inc. . 181 App. Div. 415 316 

Korn v. Weir 88 N. Y. Supp. 976 848 

Kriegbaum v. Buffalo Wire Works 

Co., Inc 182 App. Div. 448 807 

Krug v. City of New York 196 App. Div. 226 360 

Krulewitch v. Nat. Importing & 
Trading Co., Inc 191 App. Div. 904 545 

L. 

Lake Shore & Michigan Southern R. 

Co. v. City of Dunkirk 65 Hun, 494; affd., 143 N. Y, 

660 301 

Lalor v. Mayor, etc 12 Daly, 235 729 

Landes v. Hart 131 App. Div. 6 926 

Lansing v. Hadsall 26 Hun, 619 333 

Laske v. Wolf 154 App. Div. 233 333 

Lee v. Woolsey 19 Johns. 319 861 

Lehigh Valley R. R. Co. v. Canal 

Board 204 N. Y. 471, 477 704 

Lehmaier v. Jones , 100 App. Div. 495 769 

App. Div.— Vol. CXGV. iv 



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1 TABLE OP OASES CITED, 

pioa. 

Leonard v. Carleton & Hovey Co 230 Mais. 262, 264 212 

Leone v. Booth Steamship Co., Ltd. . 189 App. Div. 185 737 

Levy v. Loeb 89 N. Y. 386 507 

Lewisohn v. Henry 179 N. Y. 352, 361 133 

Iivermore v. Boutelle & Tenoay 77 Mass. 217 926 

Loder v. Whelpley Ill N. Y. 239, 250 350 

Logan v. Fidelity-Phenix Fire Ins. 

Co 187 App. Div. 153 306 

Looker v. Maynard 179 U. S. 46, 52 620, 621 

Loomh v. Newhall 15 Pick. 159 214 

Lord & Burnham Co. v. U. S. Ship- 
ping Board, B. F. C 265 Fed. Rep. -955 844 

Lossing v. Cushman 195 N. Y. 386 724 

Loudoun v. Eighth Ave. R. R. Co. . . 162 N. Y. 380 257-260 

Louisville & Nashville R. R. Co. v. 

Layton 243 U. S. 617 793 

Law v. Swartwout 171 App. Div. 725 306* 

Luby v. Hudson River R. R. Co. . . , 17 N. Y. 131 497 

Lumley v. Wabash R. R. Co 76 Fed. Rep. 66, 71 754 

Lute v. Lutz 9 N. Y. Supp. 858 605 

Lynch v. Dorsey 98 App. Div. 163 402 

Lynch v. St. John .8 Daly, 142 126 

Lyons v. Erie R. Co 57 N. Y. 489 732 

M. 

Maas v. Morgenthaler 136 App. Div. 359 808, 810 

Mabon v. Ongley Electric Co 156 N. Y. 196 865 

MacDaniel v. United States 87 Fed. Rep. 324 793 

MacNabb v. Porter Air-Lighter Co. . 44 App. Div. 102 865 

MacPherson v. Buick Motor Co 217 N. Y. 382 114 

Mackie v. Egan 6 Misc. Rep. 95 710 

Mackintosh v. Kimball 101 App. Div. 494, 498 39 

Mahoney v. Bernhard 45 App. Div. 499, 502 623 

Maisel v. Fire Assn 59 App. Div. 461 155 

Maisels v. Dry Dock, E. B. & B. St. 

R. R 16 App. Div. 391 497 

March v. Marasco 165 App. Div. 348 105 

Marconi Wireless Tel. Co. v. Uni- 
versal T. Co., Inc 194 App. Div. 272 847 

Marden v. Dorthy, No. 2 12 App. Div. 188 63 

Marshall v. Meech 51 N. Y. 140 746 

Marshall v. Sackett & Wilhelms Co. . 166 App. Div. Ml 84 

Marston v. Gould 69 N. Y. 220 308 

Martin v. Crossley 46 Misc. Rep. 254 67 

Marvin v. Brooks 94 N. Y. 71 308 

Maslenka v. Brady 188 App. Div. 663 257 

Mason v. Decker 72 N. Y. 595 711 



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TABLE OP CASES CITED. li 

PAOB. 

Masses Pub. Co. v. Patten 244 Fed. Rep. 535; revd., 246 

id. 24 790 

Matter of Alpert v. Powers 223 N. Y. 97, 101 49 

Matter of Ames 141 N. Y. Supp. 793, 795, 796. . 383 

Matter of Andersen 178 N. Y. 416, 420 264 

Matter of Anderson v. Johnson Light- 
erage Co 224 N. Y. 539; 193 App. Div. 

1,929.... 913 

Matter of Andrews 43 App. Div. 394; affd., 162 

N.Y.I 29 

Matter of Antonopulos 171 App. Div. 659 97 

Matter of Bielby 91 Misc. Rep. 353, 364 908 

Matter of Bischoff 80 App. Div. 326 734 

Matter of Bloomfleld v. November. . . 223 N. Y. 265 661 

Matter of Bostwick 160 N. Y. 489, 494 552, 553 

Matter of Caffrey 52 App. Div. 264 294, 295 

Matter of Campbell 170 N. Y. 84. . . # 30 

Matter of Carroll v. Knickerbocker 

Ice Co 218 N. Y. 435 673 

Matter of Case 214 N. Y. 199, 203 . 43 

Matter of City of New York 190 N. Y. 350, 360 704 

Matter of City of New York, Bast 

136th St 127 App. Div. 672 392 

Matter of Common Council of 

Amsterdam 126 N. Y. 158 239 

Matter of Daly v. Bates & Roberts. . 224 N. Y. 126 110 

Matter of Doey v. Howland Co 224 N. Y. 30, 35, 38 294r-296 

Matter of Donohue 97 App. Div. 205 350 

Matter of Dose v. Moehle Litho- 
graphic Co 221 N. Y. 401 443 

Matter of Drax (Savile v. Yeatman) . . 57 L. T. (Ch. D.) 475 134, 135 

Matter of Bggleston v. Shinola Co. . . 229 N. Y. 622 914 

Matter of Eldridge v. Endicott, 

Johnson & Co 228 N. Y. 21 660 

Matter of Emmons 110 App. Div. 701 30 

Matter of Powles 222 N. Y. 222, 232 29 

Matter of Friedell 20 App. Div. 382 826 

Matter of Gifford v. Patterson, Inc. . 222 N. Y. 4, 8 49 

Matter of Great Northern Salt & 
Chemical Works, Ex parte Ken- 
nedy 44 L. R. Ch. Div. 472 249 

Matter of Griffin v. Thompson 202 N. Y. 104, 111 . •. 820 

Matter of Grosvenor 124 App. Div. 331, 332 383 

Matter of Haggerty 128 App. Div. 479, 481; afifd., 

194 N. Y. 550 550 

Matter of Havemeyer 32 Misc. Rep. 416, 417 383 

Matter of Heitz v. Ruppert 218 N. Y. 148 110 

Matter of Hendricks v. Seeman Bros. . 170 App. Div. 133 78 



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iii TABLE OF OASES CITED. 

paob. 

Matter of Hutton 176 App. Div. 217 553 

Matter of Jensen v. Southern Pacific 

Co 215 N. Y. 514 112 

Matter of Johnston. 76 Misc. Rep. 374 96 

Matter of Keator v. Rock Plaster 

Mfg. Co 224 N. Y. 540. 913 

Matter of Keogh, Inc 192 App. Div. 624 520 

Matter of Kindberg 207 N. Y. 220 350 

Matter of Kipp 70 App. Div. 567 264 

Matter of Larson 31 Hun, 539; 96 N. Y. 381. ... 96 

Matter of Leslie 92 Misc. Rep. 663; affd., 175 

App. Div. 108, 112 572, 575 

Matter of Iindheim 195 App. Div. 827 830 

Matter of Littler v. Puller Co 223 N. Y. 369 51 

Matter of Litts v. Risley Lumber Co.. 224 N. Y. 321 . . 676 

Matter of Livingston 151 App. Div. 1 96 

Matter of Livingston 34 N. Y. 555, 570 295 

Matter of Masury . /. 28 App. Div. 580, 584; affd., 

159 N. Y. 532 552, 553 

Matter of Miller. 110 N. Y. 216. . . . .' 946 

Matter of Modra v. Little 223 N. Y. 452, 454 335 

Matter of Mondorf 110 N. Y. 450 350 

Matter of Moore 72 Misc. Rep. 644 96 

Matter of Moore v. Lehigh Valley 

R. R. Co 169 App. Div. 177 110 

Matter of Mould 113 Misc. Rep. 602 824 

Matter of Murphy 41 App. Div. 153 350 

Matter of Parsons v. Delaware & 

Hudson Co 167 App. Div. 536 915 

Matter of Penfold 216 N. Y. 163, 167 383 

Matter of Pullman 46 App. Div. 574 383 

Matter of Quinby v. Public Service 

Comm 223 N. Y. 244, 264 6 

Matter of Rapid Transit Ferry Co. . . 15 App. Div. 530, 532 520, 522 

Matter of Rapier 143 U. S. 110 788 

Matter of Rhyner v. Hueber Bldg. 

Co 171 App. Div. 56 78 

Matter of Rist v. Larkin & Sangster. . 171 App. Div. 71 439 

Matter of Robinson 203 N. Y, 380, 386 546 

Matter of Rowe Co., Inc 191 App. Div. 179 198 

Matter of Schuyler's Steam Tow Boat 

Co 136 N. Y. 169 167 

Matter of Schwarz 175 App. Div. 335 197, 199 

Matter of Seagrist 1 App. Div. 615 343 

Matter of Snelling 136 N. Y. 515 350 

Matter of Spingarn 175 App. Div. 806 563 

Matter of State Industrial Commis- 
sion v. Newman 222 N. Y. 363 626 



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TABLE OF CASKS CITED. liii 

Matter of Steinwender 176 App. Div. 517 663 

Matter of Sullivan 229 N. Y. 440 350 

Matter of Szpakowski 166 App. Div. 578 57 

Matter of Thomas 33 Miso. Rep. 729 511, 513 

Matter of Versohleiser v. Stern & 

Son 229 N. Y. 192 337 

Matter of Walker y. Clyde Steamship 

Co 215N.Y. 529 112 

Matter of Walz v. Holbrook, Cabot & 

Rollins Corp 170 App- Div. 6 78 

Matter of Woodruff v. Howes Const. 

Co 228 N. Y. 276, 278 660 

Maue v. Erie R. R. Co 198 N. Y. 221 90 

May v. Hettrick Brothers Co 181 App. Div. 3; affd., 226 

N. Y.580 308 

Maynard v. Beardsley 7 Wend. 560. 861 

Maynard v. Rochester R. Co 136 App. Div. 212; 143 id. 957. . 691 

McAnrow v. Martin 183 111. 473 866 

McCahill v. N. Y. Transportation 

Co 201 N. Y.221 438 

McCammon v. Kaiser 218 N. Y. 46 107 

McCann v. Chasm Power Co 211 N. Y. 301 275 

McCarty v. Lambley 20 App. Div. 264, 267 42J2 

McCluskey v. Cromwell 11 N. Y. 593 793 

McCord v. Thompson-Starrett Co... 129 App. Div. 130; affd., 198 

N. Y.587 657 

McCoun v. Pierpont 194 App. Div. 912 727 

McCulloch v. State 11 Ind. 424 285, 286 

McDonald v. Metropolitan St. R. 

Co 167 N. Y. 66, 68 ... . 29, 687 

McGreevy v. New York City R. Co. . 113 App. Div. 155 691 

McHenry v. Jewett 90 N. Y. 58 326 

Mclnnis v. City of New Rochello. ... 99 Misc. Rep. 388 730 

Mclntyre v. Whitney 139 App. Div. 577; affd., 201 

N. Y. 526 608 

McEellar v. American Synthetic 

Dyes, Inc 181 App. Div. 371; 229 N. Y. 

106,603 896 

McKeon v. Van Slyck 223 N. Y. 392 632, 633 

McMullen v. Hoffman 174 U. S. 639 742 

McNab v. McNab & Harlm Mfg. 

Co 62 Hun, 18 324 

Mechelen v. Wallace 7 A. & B. 49 214 

Medlin Milling Co. v. Moffat t Com- 
mission Co 218 Fed. Rep. 686 303 

Meislahn v. Irving Nat. Bank 62 App. Div. 231, 234 39 

Melker v. City of New York 190 N. Y. 481, 488 275 

Meneely v. Kinser Const. Co 128 App. Div. 799 704 



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liv TABLE OF CASES CITED. 

PAOB. 

Merchants' Nat. Bank v. Snyder 52 App. Div. 606; affd., 170 

N. Y.565 333 

Merrihew v. Kingsbury 160 App. Div. 40 160 

Merritt v. Todd 23 N. Y. 28 812 

Metropolitan Trust Co. v. Stallo, 

No. 1 166 App. Div. 639 869 

Miller v. Crown Perfumery Co 125 App. Div. 881 324 

Miller y. Farmers & Merchants' State 

Bank 85 App. Div. 175, 178 38 

Miller v. Levi 44 N. Y. 489 57, 58 

Miller v. State 3 Ohio St. 475 285 

Miller v. State of New York 68 Misc. Rep. 607; affd., 164 

App. Div. 522; 223 N. Y. 

690 701 

Miller v. Ungerer & Co, No. 1. 188 App. Div. 655, 659. . . 710, 712 

Milliken v. McGarrah 164 App. Div. 110. 160 

Minneapolis & St. Louis B. R. Co. v. 

Winters 242 U. S. 353 915 

Minor v. Beveridge 141 N. Y. 399, 403 508 

Mittendorf v. N. Y. & H. R. R. Co. . 58 App. Div. 260 584 

Modern Loan Co. v. Police Court. . . 12 Gal. App. 582 96 

Moebus v. Herrmann 108 N. Y. 349 913 

Moore v. City of Yonkers 235 Fed. Rep. 485 239 

Moran v. Rodgers & Hagerty, Inc. . . 180 App. Div. 821 947 

Moran v. Standard Oil Co 211 N. Y. 187 83 

Moran v. Sturges 154 U. S. 256, 274 167 

Morange v. Morris 3 Eeyes, 48 101 

Morgan v. King 35 N. Y. 45! 275 

Morrell v. Brooklyn Borough Gas 

Co 113 Misc. Rep. 65 4 

Morrell v. Brooklyn Borough Gas 

Co., No. 1 195 App. Div. 1, 6, 7 899 

Morrell v. Brooklyn Borough Gas 

Co., No. 3 195 App. Div. 899 4 

Morris R. Co. v. Jersey City 35 Vroom, 148; affd., 65 N. J. L. 

683 392 

Morrison v. Brenmohl 137 App. Div. 4 809 

Mosler Safe Co. v. Brenner 100 Misc. Rep. 107 712 

Mountain Timber Co. v. Washing- 
ton 243 U. S. 219, 235, 237. .. . 626, 627 

Mucklow v. Mangles 1 Taunt. 318 219 

Mullen v. Schenectady R. Co 214 N. Y. 300, 305 612 

Mullen v. St. John 57 N. Y. 567 260 

Mullen v. Washburn 224 N. Y. 413, 421 668 

Municipal Gas Co. v. Pub. Serv. 

Comm 225 N. Y. 89, 101 556 

Mnnro v. State of New York 223 N. Y. 208 945 

Mordock v. Gilchrist 52 N. Y. 242, 246 101 



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TABLE OF CASES CITED. lv 

PAOB. 

Murdook v. Gould 193 N. T. 369, 377 724 

Murdook v. Murdock 148 App.' Div. 564, 669 607 

Murray v. New York Ins. Co 9 Abb. N. 0. 309 908 

N. 

National Bank v. Case 99 U. S. 628 622 

National Protective Ann. v. dim- 
ming 170 N. Y. 315 656, 804 

Nauss v. Nauss Brothers Co., No. 1. . 195 App. Div. 318 329 

Nelson v. Minneapolis 8t. R. Co 61 Minn. 168; 63 N. W. Bep. 

486 756 

Nelson v. Traders' Insurance Co 181 N. Y. 472 185 

Nestor v. Pabst Brewing Co 191 App. Div. 312 435 

New York Central R. R. Co. v. 

White 243 U. 8. 188 112, 626, 627 

New York Life Ins. & Trust Co. v. . 

Cuthbert 87 Hun, 339 333 

New York & Richmond Gas Co. v. 

Nixon 192 App. Div. 923 899 

Newell v. People 7 N. Y. 9, 98 793 

Niooll v. Sands 131 N. Y. 19, 24 477 

Norman v. Federal Mining & Smelt- 
ing Co 180 App. Div. 325 623 

Norris v. Hall 124 Mich. 170 729 

Norris v. Interurban St. R. Co 90 N. Y. Supp. 460 498 

Northern Pacific Railroad r. Dustin. . 142 U. 8. 492 10 

Nulle v. Hardman, Peck & Co 185 App. Div. 351 110 

O. 

O'Brien v. Fitzgerald 6 App. Div. 509; affd., 150 

N. Y.572. i... 326 

O'Brien v. Illinois Surety Co 203 Fed. Rep. 436; sub nom. 

Illinois Surety Co. v. O'Brien, 

223 id. 933 759,760, 771 

O'Donoghue v. Boies 159 N. Y. 87, 98, 99 353 

Oakes v. C. W. Co 143 N. Y. 430 247 

Oakland Cemetery v. City of 

Yonkers 63 App. Div. 448; affd., 182 

N. Y. 564 237 

Ogden City v. Bear Lake & River 

Waterworks & Irr. Co 52 Pac. Rep. 697 866 

Ohio Valley Water Co. v. Ben Avon 

Borough 40 Sup. Ct. Repr. 527, 528 42 

Olmsted v. Keyes 85 N. Y. 593 511 

Oben v. The Scotland 42 Fed. Rep. 925 737 

Orr v. Doubleday, Page A Co 172 App. Div. 97 83 

Oswego & Syracuse R. R. Co. v. 
State. 226 N. Y. 351. 704 



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lvi TABLE OF CASES OITED. 



P. PAOI. 

Palmer v. Palmer. *..'.. w 79 N. J. Eq. 496 697 

Palmer v. Van Santvoord. 153 N. Y. 612, 614 41 

Panama R. R. Co. v. Cnrran 256 Fed. Rep. 768 843 

Pardee v. Fish 60 N. Y. 265 812 

Park v. Park 24 Miao. Rep. 372 697 

Patterson v. Colorado 205 U. 8. 454 787 

Patterson v. Robinson 116 N. Y. 193 247 

Patton v. Texas & Pacific R. Co 179 U. 8. 663 259 

Pavia v. Petroleum Iron Works Co. . 178 App. Div. 346 112 

Peck v. Jenness 7 How. (U. S.) 612, 624 167 

Peck & Co. v. Lowe 247 U. 8. 165 639 

Peirce v. McDonald 168 App. Div. 47, 56 308 

Pelletreauv. Metropolitan St. R. Co. 74 App. Div* 192; affd., 174 

N. Y. 503 691 

Penn. Fire Ins. Co. v. Moore 61 8. W. Rep. 878 183 

People v Abed 18 N. Y. 415 793 

People v. Bank of North America. . . 75 N. Y. 547, 564 464 

People v. Bills 129 App. Div. 798 911 

People v. Buflom 214 N. Y. 53, 60, 64 907 

People v. Chacon 102 N. Y. 669 350 

People v. Cole 134 App. Div. 759 911 

People v. Corey 148 N. Y. 487. 205 

People v. Davis 78 App. Div. 570 630 

People v. De Garmo 179 N. Y. 130, 134 907 

People v. Doty 80 N. Y. 225, 228 724 

People v. Equitable life Assurance 

Society 124 App. Div. 714 326 

People v. Farina 134 App. Div. 110, 113 911 

People v. Flack 125 N. Y. 324 804 

People v. Hami ton 183 App. Div. 55, 62 793 

People v. Hatch 33 111 9 286 

People v. Inman 197 N. Y. 200, 205 645 

People v. Jung Hing 212 N. Y. 393 744 

People v. Kane 213 N. Y. 260 733 

People v. Lilymeld 192 App. Div. 719 887 

People v. Loose 199 N. Y. 505, 510 798 

People v. Luft 192 App. Div. 713 887 

People v. Luhrs 195 N. Y. 377, 381 793 

People v. Molineux 168 N. Y. 264, 327, 336, 

337 203, 907 

People v. Most 171 N. Y. 423 786, 787, 801 

People v. MuUer .• 96 N. Y. 408 788 

People v. New York, L. B. AW. R. R. 

Co 104 N. Y. 58 10 

People v. Petrea 92 N. Y. 128 286 

People v. Pindar 210 N. Y. 191, 196 798 

People v. Robertson 88 App. Div. 198 911 



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TABLE OP CASES CITED. lvii 

PAQM. 

People v. Ruggles 8 Johns. 290, 297 788 

People v. Schaeffer. 41 Hun, 23 794 

People v. Seppi 291 N. T. 62 744 

People v, Shaw , 158 App. Div. 146 911 

People v. Taleisnik 22* N. Y. 489, 493 911 

People ex ret Alpha P. C Co. y. 

Knapp 230 N. Y. 48, 59, 60, 62 629 

639, 641 
People ez rel. Board of Police y. 

Shulman - 8 App. Div. 514 % 516 365 

People ex rel. Brixton Operating 

Corp. v. La Fetra 194 App. Div. 523 281 

People ex rel. Browne v. Koenig 133 App. Div. 756, 758 521 

People ex rel. Brush £. M. Co. v. 

Wemple 129 N. Y. 543, 558 747 

People ex rel. Chamberlain v. 

Forrest . . . . . 96 N. Y. 544 .192 

People ex rel. Childs v. Knott 187 App. Div. 604, 610, 611 . . . 793 

People ex rel. CUrons* Gas Light Co. 

v. Board of Assessors, etc ... 39 N. Y. 81 26 

People ex reL Commissioners v. 

Banks . 67 N. Y. 568, 575 636 

People ex rel. Cornelius v. Callan. ... 69 Misc. Rep. 187 96 

People ex rel. Darting v. Warden of 

City Prison 154 App. Div. 413 793 

People ex rel. Farrington v. Men- 

sching < 187 N. Y. 27 908 

People ex rel. Gill v. Smith 5 N. Y. Cr. Rep. 513. 652 

People ex rel. Gilmonr v. Hyde 89 N. Y. 11, 17 41, 4Q 

People ex reL Green v. Hall 83 Hun, 375 746 

People ex rel. Higgins v. Mo Adam. . . 84 N. Y. 287, 296 226 

People ex rel. Jamaica W. S, Co. v. 

Tax Comrs 196 N, Y. 39. 746 

People ex rel. Kellogg v. WeUs. 101 App. Div. 600, 603 746 

People ex rel. Lewis v. Fowler 229 N. Y. 84 281 

People ex rel. Linton v. B. H. R. R. 

Co 172 N. Y. 90 10 

People ex rel Livingston v. Wyatt. . . 186 N. Y. 383, 393 227 

Peopleexrel. McClelland v. Roberts. . 148 N. Y. 360 793 

People ex rel. Miller v. Ebaendorf . , . 42 App. Div. 309 , . 820 

People ex rel. Morewood Realty 

. Holding Co. v. Cantor 195 App. Div. 190 193 

People ex rel. Municipal Gas Co. v. 

Pub. Serv, Comm 224 N. Y. 156, 166 5, 7, 8 

People ex rel. National Perk Bank r. 

Mete 141 App. Div. 600, 606 729 

People ex rel. New York Edison Co. v. 

Willeox 151 App. Div. 882, 839. 947 



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lviii TABLE OP CASES CITED. 

PAM. 

People ex rel. New York, W. & B. R. 

Co. v. Waldorf . 168 App. Div. 473 391 

People ex rel. Newton v. Special Term, 

Part 1 193 App. Div. 463 227, 516 

People ex rel. Osborne v. Board of 

Supervisors 168 App. Div. 765 856 

People ex rel. Osgood v. Comrs 99 N. Y. 154 747 

People ex rel. Panama R. R. Co. v. 

Comrs. of Taxes 104 N. Y. 240 747 

People ex rel. Price v. Hayes 151 App. Div. 561 908 

People ex rel. Purdy v. Commissioners 

of Highways of Marlborough 54 N. Y. 276 285 

People ex rel. Rand v. Craig 195 App. Div. 850, 856 858 

People ex rel. Rayland Realty Co., 

Inc., v. Pagan 194 App. Div. 185 944 

People ex rel. Rome, W. & O. R. R. 

Co % v. Haupt 104 N. Y. 377, 381 . . . 747 

People ex rel. Schauweoker v. 

Greene 96 App. Div. 249, 254 820 

People ex rel. Scott v. Pitt 169 N. Y. 521 238 

People ex rel. Simpson Co. v. 

Kempner 164 App. Div. 674 96, 126 

People ex rel. Smith v. Gilon 66 App. Div. 25 793 

People ex rel. Smyth v. Craig 195 App. Div. 857 859 

People ex rel. Staples v. Sohmer 206 N. Y. 39, 43 729 

People ex rel. Terwilliger v. Cham- 
berlain 140 App. Div, 503 57 

People ex rel. Village of South Glens 

Falls v. Pub. Serv. Comm 185 App. Div. 912; 225 N. Y. 

216, 222, 223. ... 6, 535, 539, 720 
People ex rel. West P. I. Co. v. 

Davenport 91 N. Y. 574 747 

People's Bank v. St. Anthony's 

R. C. Church 109 N. Y. 512 248 

Perkins v. Morgan 36 Colo. 360 134, 135 

Perkins v. Smith 116 N. Y. 441 42 

Perna v. U. S. Shipping Board, 

E. F. C 266 Fed. Rep. 896 844 

Perrin v. Smith 135 App. Div. 127 306 

Petty v. Emery 96 App. Div. 35 326 

Phelps-Stokes Estates v. Nixon 222 N. Y. 93 711, 712 

Pierce v. United States 252 U. S. 239 790 

Pierson v. Interborough Rapid Tran- 
sit Co 184 App. Div. 678 110 

Pifumer v. Rheinstein & Haas, Inc. . 187 App. Div. 821 364 

Pippin v. Jones 52 Ala. 161, 165 134, 135 

Pittsfield Nat. Bank v. Bayne 140 N. Y. 321- 331 866 

Plumb v. Richmond Light & R. R. Co. 194 App. Div. 972 255 



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TABLE OF CASES CITED. lix 

FAGS. 

Pod v. BruMwick-Balke-CoUender 

Co 216 N. Y.310 88 

Polieastro v. Sprague Co 175 App. Div. 417 608 

Pollook y. Farmers' Loan & Trust 

Co 157 U. 8.429 642 

Pbpev.ToroHaateCarMte.Co.... 87 N. Y. 137 172 

Potto v. Pardee 220 N. Y. 431 436 

Pragsr v. Seheff & Co., Inc., No. 1 . . 107 Misc. Rep. 500 712 

Ptoner v. Carroll 33 Misc. Rep. 428 861 

Provoost v. International R. Co 151 App. Div. 240; affd., 208 

N. Y.611 692 

Public Service Commission v. Brook- 
lyn Borough Gas Co 106 Misc. Rep. 549; affd., 188 

App. Div. 935; 189 id. 62, 

67,72,74 3,5, 7 

Public Service Commission v. Iro- 
quois Natural Gas Co 184 App. Div. 285; affd., 226 

N.Y.580 537,539, 718 

Public Service Commission v. Pavilion 

Natural Gas Co Ill Misc. Rep. 692 538 

Pumpelly v. Green Bay Co 13 Wall. 166 704 

Purcell v. Lauer 14 App. Div. 33, 38 732 

Q- 

Quinlan v. Welch 141 N. Y. 158, 165 946 

Quinlivan v. Buffalo, R. & P. R. Co. . 52 App. Div. 1 90 

Qtrinn v. Fire Assn 180 Mass. 560 183 

R. 

Raben v. Risnikoff 95 App. Div. 68 105 

Rafferty v. Williams 34 Hun, 544 333 

Randall v. Howard 2 Black, 585 927 

Reed v. Metropolitan St. R. Co 180 N. Y. 315, 317 686 

687, 690, 691 

Reeder v*Sayre 70 N. Y. 180, 187 412 

Reining v. City of Buffalo 102 N. Y. 308, 310 269, 270 

Reiss v. Levy 175 App. Div. 938 520 

Reynolds v. Bank of Mt. Vernon 6 App. Div. 62; affd., 158 N. Y. 

740 324 

Rhode Island v. Palmer 253 U. S. 350 782 

Rice v. Peters. 128 App. Div. 776 308 

Richards & Co., Inc., v. Wreschner. . 174 App. Div. 484, 487 546, 547 

Richardson v. Brioker. 7 Colo. 58 12 

Richardson v. Greenberg 188 App. Div. 248, 252 677 

Riehman v. Consolidated Gas Co — 114 App. Div. 216 6 

Rickerson v. Hartford Fire Ins. Co. . 149 N. Y. 307 155 

Ridgway v. Grace 2 Misc. Rep. 293 848 

i v. Johnson County 6 Wall. 166 167 



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lx TABLE OF CASES CITED. 

FAGS. 

Rintelen v. Schaefer 158 App. Div. 477 380 

Ripin v. U. S. Woven Label Co 205 N. Y. 442 520, 522 

Ritchie v. Richards. 14 Utah, 345 285 

Riverside Mills v. Menefee 237 U. S. 189 172 

Robertson v. Baldwin 165 U. S. 275 786 

Robins v. McClure 100 N. Y. 328, 333 511; 512 

Robison & Co., Inc., v. Kram, No. 1 . . 195 App. Div. 873 879 

Rock v. Monarch Building Co 7 Ohio St 244; 100 N. B. Rep. 

887 ! 759 

Rodgers v. Barle 5 Misc. Rep. 164 809 

Rogers v. Pell 154 N. Y. 518, 530 63 

Rogers v. State of New York 184 App. Div. 340 70S 

Rogers v. Wiley 131 N. Y. 527 508 

Rohde v. Thwaites 6 B. & C. 388 219 

Rolfe v. Hewitt 227 N. Y. 486 20, 930 

Root v. Wadhams 107 N. Y. 384, 394 189 

Rose v. Balfe . 223 N. Y. 486 436 

Roseoquest v. Canary 27 App. Div. 30 313 

Rothschild v. Title Guarantee & 

Trust Co 204 N. Y. 464 233 

Rothschild v. Whitman 132 N. Y. 472. . i 881 

Rubei v. Central Railroad Co. of 

N. J 171 App. Div. 456 663 

Rust Land & Lumber Co. v. Isom. . . 91 Am. St. Rep. 68 635 

s. 

Sabin v. Kendrick 58 App. Div. 108 7M 

Solas v. United States 234 Fed. Rep. 842 843 

Salmon v. Brandmeier 104 App. Div. 66 710 

Salotar v. Neuglass & Co 228 N. Y. 508 807 

San Lucas v. Bornn & Co 173 App. Div. 703, 708; affd., 

225 N. Y. 717 949 

Sanders v. Downs 141 N. Y. 422, 426 730 

Sanger v. Waterbury 116 N. Y. 371, 374 212 

Scarff v. Metcalf 107 N. Y. 211 737 

Schaefer v. United States 251 U. S. 466 790 

Schasel v. International R. Co 185 App. Div. 194, 196; affd., 

230N.Y.538. . 686,687,690, 691 

Soheele v. Waldman 136 App. Div. 679, 682 58, 412 

Schenck v. United States 249 U. S. 47 i . . 786, 787, 790 

Sohepp Co. v. Far Eastern Mfg. Co. . 168 N. Y. Supp. 636 714 

Schlenker v. Garford Motor Truck 

Co., Inc 183 App. Div. 166 439 

Schoonmaker v. Hoyt 148 N. Y. 425, 429 101 

Schreiber v. Elkin. 118 App. Div. 244 58 

Schwab v. Potter Co 194 N. Y. 409 326 

Schwertf eger v. Scandinavian Ameri- 
can Line 186 App. Div. 89 621 



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TABLE OF CASES CITED, lxi 

FAGS. 

Soofield r. CSirk 48 Neb. 711 312 

Soott v. MeNeal 154 U. S. 34, 46 44 

Seriver v. Smith 100 N. Y. 471 704 

Seipp v. Dry Doek* E. B. & B. R. R. 

Co 46 App. Div. 489 497 

Sesselmann v. Metropolitan St.. R. 

Co 65 App. Div. 484 ,687, 602 

Shaffer v. Carter 252 U. S. 55, 57 639, 640 

Shanahan v. Monarch Engineering 

Co 219N.Y.469 112 

Sheehan v. Pieroe 70 Hun, 22 861 

Sheehy v. City of New York 160 N. Y. 139 898, 900 

Sheridan Eleo. Light Co. v. Chatham 

Nat. Bank 52 Hun, 575 249 

Shinnick v. Clover Farms Co . 169 App. Div. 236. . .-. 112 

Sice v. Cunningham 1 Cow. 397 812 

Simon v.Simon 6 App. Div. 469; affd., 159 

N. Y.549 528 

Simonds v. Rowe 110 Misc. Rep. 62 914 

Simpson v. St. John 93 N. Y, 363 126 

Smnott v. Feiock . . 165 N. Y. 444 122 

Sittig v. Cohen 130 App. Div. 689* 402 

Sloane Ship Yards Corp. v. U. S. 

Shipping Board, E. F. C 268 Fed. Rep. 624* 844 

flmidt v. Buffalo Cold Storage Co. . . 158 App. Div. 778 90 

Smith v. Craig. 211 N. Y. 456 303 

Smith v. First Nat. Bank 151 App. Div. 317 869 

Smith v. Hilton 50 Hun* 236 333 

Smith v- Keller 205 N. Y. 39 350 

Smith v. Littlefield 51 N. Y. 539, 543 412 

Smith & Sons Carpet Co. v. Ball 137 App. Div. 100 4 

Socialistic Co-operative Pub. Assn. v. 

Kuhn , 164 N. Y. 473, 475 388 

Sorchan v. City of Brooklyn 62 N. Y. 339 238 

South Buffalo R. Co. v. Kirkover . ... 176 N. Y. 301 704 

Southack v. Central Trust Co 62 App. Div. 260 399, 400 

Southern Bridge Co. v. U. S. Shipping 

Boaid, E. F. C 266 Fed. Rep. 747 844 

Southworth v. Morgan 205 N. Y. 293 621 

Spencer v. Merchant 100 N. Y. 585 238 

Sprague v. Webb 168 App. Div. 292 926 

Spring v. Fidelity Mut. Life Ins. Co. . 183 App. Div. 134 306 

Springs v. James 137 App. Div. 110; affdL, 202 

N. Y. 603... 303 

Stainton v. Kaiser Improvement Co. . 161 App. Div. 603 63 

Stall v. Wilbur 77 N. Y. 158 634 

Statev.Boyd 86 N. J. Law, 75; affd., 87 id. 

328 787 



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lxii TABLE OF CASES CITED. 

PAGB. 

State v. Fox 71 Wash. 185; affd., sab nom. 

Fox v. Washington, 236 U. S. 

273 787, 790 

State v. Gilbert 141 Minn. 263; affd., sub nom. 

Gilbert v. Minnesota, 254 U. S. 

326 786,787, 791 

State v. Moilon 140 Minn. 112; 167 N. W. Rep. 

345 786, 787 

State v. Moore 12 Cai. 56 747 

State v. Quinlan 86 N. J. Law, 120 787 

State v. Savant 115 La. 226 793 

State v. Van Pel t 136 N . C. 633 , 663 655 

State ex rel. City of Minneapolis v. 

St. Paul, M. & M. R. Co 98 Minn. 380 793 

State ex rel. Herron v. Smith 44 Ohio St. 348 286 

State of Pennsylvania v. Wheeling & 

B. B. Co 18 How. (U. S.) 421 356 

Stayton v. Graham 139 Penn. St. 1-12 231 

Stearns v. Ontario Spinning Co 184 Penn. St. 519, 523 260 

Stephenson v. Agricultural Ins. Co. . . 116 Wis. 277 183 

Stern v. International R. Co 220 N. Y. 284, 291 542, 543 

Stevens v. Union R. Co 75 App. Div. 602; affd., 176 

. N. Y. 607 692 

Stevenson Brewing Co. v. Eastern 

Co 22 App. Div. 523 946 

Stillwagon v. Callan Brothers, Inc. . . 183 App. Div. 141; affd., 224 

N. Y. 714 338 

Stoekdale v. Insurance Companies. . . 20 Wall. 323, 332 356, 642, 643 

Stokes v. Mackay 147 N. Y. 223, 236 714, 715 

Stokes v. Saltonstall 13 Pet. 181 260 

Stoller v. Franken 171 App. Div. 327 308 

Straus v. Straus 67 Hun, 492.. 605 

Strohmeyer & Arpe Co. v. Guaranty 

Trust Co 172 App. Div. 16, 20 386 

Struzyoki v. Smith Contracting Co. . 20 State Dept. Rep. 410 945 

Stuart v. Palmer 74 N. Y, 183 96 

Sullivan v. Hudson Navigation Co. . . 182 App. Div. 152, 157. . . 294, 296 

Sweeney v. City of New York 225 N. Y. 271 899, 900 

Sykes v. Halstead 1 Sand. 483 606 

T. 

Tauza v. Susquehanna Coal Co 220 N. Y. 259 172 

Taylor v. Beckham: 108 Ky. 278 286 

Taylor v. Davis 110 U. S. 330 479 

Thomas v. Gage 156 N. Y. 612 838 

Thomas v. Schumacher 17 App. Div. 441 306 

Thomas v. Scutt 127 N. Y. 133 150 

Thomas v. Williams 32 Hun, 260 634 



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TABLE OF CASES CITED. lxiii 

PAGE. 

Thomas v. Williams 10 B. & C. 664 214 

Thompson v. Fort Miller Pulp & 

Paper Co Ill Misc. Rep. 477, 485. . . 273, 276 

Thrupp v. Collett 26 Beav. 147 135 

Tilden v. Green 130 N. Y. 29, 51 133 

Todd v. Weber «5N.Y. 181, 189 365 

Tompkins v. Hunter 149 N. Y. 117, 122, 123 793 

Tower v. Tower 134 App. Div. 670 605 

Town of North Hempstead v. Pub. 

Serv. Corp 193 App. Div. 224. 6, 536, 538, 721 

Townsend v. Masterson, etc., Stone 

Dressing: Co 15 N. Y. 587 294 

Travis v. Knox Terpezone Co 165 App. Div. 156; affd., 215 

•fr N. Y.259 320 

Traykr v. Crucible Steel Co 192 App. Div. 445, 449 546 

TreadweU v. Inslee 120 N. Y. 458 189 

Trotter v. Iisman 209 N. Y. 174 320 

Troy Automobile Exchange v. Home 

Ins. Co 221N.Y.58 12 

Trustees, etc., v. Smith 118 N. Y. 641 2&1 

Tsangournos v. Smith 183 App. Div. 751 42 

Turner v. Williams 194 U. S. 279 787 

Uhlefelder v. City of Mount Vernon. . 76 App. Div. 349, 351 39 

United Brethren Church of New 

London v. Vandusen 37 Wis. 54 248 

United P. B. Co. v. Iroquois P. & P. 

Co 226 N. Y. 38, 39 275, 276 

United States v. Cress 243 U. S. 316, 330 704 

United States v. Mosley 238 U. S. 383 793 

United States v. North American Co. . 253 U. S. 330 704 

United States v. Strang 254 U. S. 491 844 

United States Bank v. Planters' 

Bank 9 Wheat. 904, 907 842, 844 

United States Qlue Co. v. Oak 

Creek 247 U. S. 321 639 

United States Title Guaranty Co. v. 

Brown 158 App. Div. 543; 86 Misc. 

Rep. 287; 166 App. Div. 688; 
217N.Y. 628; 196 App. Div. 

. 909 739, 741 

United States Trust Co. v. Hoy 150 App. Div. 621 97 

University of Illinois v. Spalding 71 N. H. 163 203 

Uvalde Paving Co. v. City of New 

York 99 App. Div. 327, 333 63 



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lxiv TABLE OF OASES OITED. 

V. 

Valdes v. Larrinaga 233 U. S. 705 308 

Van Alfltine v. Belden 41 App. Div. 123; affd., 161 

N. Y.661 701 

Van Gordon v. Hires Condensed Milk 

Co 193 App. Div. 601 439 

Van Reimpst v. Weiher 131 App. Div. 824 869 

Vandegrift v. Cowles Engineering; 

Co 161 N. Y. 436, 443 101 

Varney v. Ditmars . 217 N. Y. 223, 228 .... 614 

Vassar v. Knickerbocker Ice Co 17 N. .Y. Supp. 182 .498 

Village of Freeport v. Nassau & 

Suffolk lighting Co Ill Misc. Rep. 671 721 

Village of Mt. Morris v. Pavilion 

Natural Gas Co 183 N. Y. Supp. 792 721 

Village of Warsaw v. Pavilion Natural 

Gas Co 184 N. Y. Supp. 327, 32$ 721 

Vogel v.Badoock 1 Abb. Pr. 176 122 

Volosko v. Interurban St. R. Co 190 N. Y. 206, 209. 692 

Vose v. Cookcroft 44 N. Y. 415 264 

Vought v. Eastern Building & Loan 

Assn 172 N. Y. 508 .304 

w. 

Wadsworth v. Hinchcliff 218 N. Y. 589 400 

Wagener v. Harriott 20 Abb. N. C. 283 126 

Wagner v. Mallory 41 App. Div. 126; affd., 169 

N. Y.501 25 

Walker v. Walker 155 N. Y. 77 946 

Wallace v. Baring 2 App. Div. 501 21 

Wallach v. Commercial Fire Ins. Co. 

of N. Y 12 Daly, 387 908 

Walsh v. N. Y. C. & H. R. R. R. Co . . . 204 N. Y. 58 66 

Waltermire v. Waltermire 110 N. Y. 183 605 

Wamsley v. Horton & Co 68 Hun, 549 373 

Washburn v. Burnham &3 N. Y. 132 579 

Watson v. Empire Engineering Corp . . 77 Misc. Rep. 543 701 

Weintraub v. Kruse 192 App. Div. 925 808 

Weldon v. Brown 84 App. Div. 482; 89 id. 586. . . 308 

Wells Fargo & Co. v. Taylor 254 U. S. 175; 41 Sup. Ct. Rep. 

167 

Wentworth v. Manhattan Market Co. 218 Mass. 61, 91 700, 770 

Westervelt v. Gregg 12 N. Y. 212 672 

Weston v. Citizens' Nat. Bank 88 App. Div. 330, 336 '. . . 395 

Weston v. Watts 45 Hun, 219 866 

Wheeler v. Sage 1 Wall. 529 928 

Wheeler v. Warner 47 N. Y. 519 812 



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TABLE OF CASES CITED. bcv 



Whitakerv. Eighth Ave. R, R. Co. . . 61 N. Yl *95 497 

White v. McLaren 151 Man. 553 771 

White v. Smith 54 N. Y. 522 508 

White v. Walker. 31 UL 422-427. 231 

Whitney Arma Co. v, Barlow. 63 N. Y. 62. . . . ! 304 

Wightman v. New York Life Ins. Co. . 119 App. Div. 496 15p 

Wilkes v. Perria 5 Johns. 335 710 

Wilkes v. Rome Wire Qo 184 App. Div. 626 78 

Wilkes County v. Coler 180 U. S. 506 286 

Willeox v. Consolidated Gas Co 212 U. 8. 19, 54. 556 

Williams v. Sheldon 10 Wend. 654, 658 645 

Williams v. Western Union Tel. Co. . 93 N. Y. 162 324 

Williams v. Wiffiams 136N.Y.193.J I 528 

Williamsburgh Savings Bank v. Town 

of Solon 136 N. Y. 465, 474 233 

Willis v. Sharp 12 N. Y. Supp. 120 866 

Winter v. City of Niagara Palls 190 N. Y. 198, 203 269 

Winter v. Winter 191 N. Y. 462 432 

Wise v. Bigger 79 Va. 269 286 

Woerishoffer v. North River Const. 

Cfc !.;.... 6 Civ/ Proe. Rep. 113; alTd., 

99 N. Y. 398 865 

Wolf v. American Tract Society 164 N. Y. 30 257, 260 

Wolfe v. Burke f 56 N. Y. 115, 119 226 

Wood v. Duff-Gordon. . . . ; 222 N. Y. 88 84 

Woodruff v. Erie R. Co , . . . 93 N. Y. 609 304 

Woodward v. Murray 18 Johns. 400 134, 135 

Wooflcott v. Shubert , . . . 217 N. Y. 212 185 

Wormser v. Metropolitan St. R. Co. . 184 N. Y. 83-90. 304 

Wynehamer v. People 13 N. Y. 378, 393 43 

Y. 

Yale & Towne Mfg. Co. v. Travis. . . 362 Fed. Rep. 576; sub nom« 

Travis v, Yale & Towne Mfg. 
Co., 252 U. S. 60 639, 641 

Yates y. Van DeBogert 56 N. Y. 526. . « 392 

Young v. Barker-Ransom 139 App. Div. 194, 195 39 

Young v. U.< S. Mortgage & Trust 
Co 214 N. Y.279 248 

Younger v. Campbell 177 App, Div. 403 379 

z. 

Zeoohini v. Mayer 193 App. Div. 950 424 

Ziehen v. Smith 148 N. Y. 558, 561, 562. .. 101, 107 

Zobel Oo. v. Canals 186 App. Div. 231 87 

Zom v. Zorn 38 Hun, 67. , 598, 602, 603 

A**. Div,— Vol. CXCV. v 



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lxvi UNITED STATES STATUTES AT LARGE CITED. 



UNITED STATES CONSTITUTION CITED. 



PAOB. 

U. S. Const, generally 168, 640 

782, 789, 791, 795, 843 
U. 8. Const, art. 1, § 10, subd. 

1 619, 720 

U. S. Const, art. 1, § 10, subd. 

2 639 



PAOl. 

U. 8. Const, art. 4, 8 2 641 

U. S. Const. 14th Amendt. } 1 . . 5 

171," 619, 626, 627 

639, 672, 786, 790 

U. S. Const. 18th Amendt 782 



UNITED STATES REVISED STATUTES CITED. 



PAGB. 

U. S. R. 8. § 720 168 

U. 8. R. 8. § 3271 708, 713 



PAQl. 



U. 8. R. 8. §§ 5151, 5152.. . 621, 622 
U. 8. R. S. §5363 737 



UNITED STATES STATUTES AT LARGE CITED. 



PAOl. 

4 U. 8. Stat, at Large, 117, 
§ 10 737 

12 U. 8. Stat, at Large, 503, 
chap. 130 630 

13 U. 8. Stat, at Large, 283, 

§ 120etseq 642 

13 U. S. Stat, at Large, 417, 

Res. No. 77 642 

16 U. 8. Stat, at Large, 261, 

5 17 642 

24 U. S. Stat, at Large, 379, 

i 1, subds. 18-21 428 

24 U. S. Stat, at Large, 379, 

§ 1, subd. 22 428, 429 

31 U. S. Stat, at Large, 1284, 

§ 605 etseq., as amd.. 839,841, 842 

32 U. S. Stat, at Large, 1213, 
ehap. 1012 787 

32 U. S. Stat, at Large, 1214, 
5 2 787 

35 U. S. Stat, at Large, 1096, 
§37 828 

35 U. S. Stat, at Large, 1146, 
§ 295 737 



35 U. S. Stat, at Large, 1152, 

§ 335 829 

36 U. 8. Stat, at Large, 1162, 

§ 265 168 

38 U. S. Stat, at Large, 166, 

chap. 16, §2 643 

38 U. S. Stat, at Large, 252, 

§ 2 621, 622 

38 U. S. Stat, at Large, 273, 

§ 23 621, 622 

39 U. S. Stat, at Large, 728, 
chap. 451 840, 841 

39 U. S. Stat, at Large, 731, 

§ 11 83^-541 

40 U. S. Stat, at Large, 1, chap. 1. 841 
40 U. S. Stat, at Large, 182, chap. 

29 840, 842 

40 U. S. Stat, at Large, 217, 219, 

chap. 30 787 

40 U. S. Stat, at Large, 535, 

chap. 62 842 

40 U. 8. Stat, at Large, 904, 

chap. 154 645, 646 

40 U. S. Stat, at Large, 1650. ... 841 



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NEW YORK REVISED STATUTES CITED, lxvii 



40 U.S. Stat, at Luge, 1807.... 645 

41 U. S. Stat, at Large, 180, 
chap. 24 840 



41 U. 8. Stat, at Large, 477, 478, 
§ 402 428 

41 U. S. Stat, at Large, 735, 
chap. 219 629, 631 



UNITED STATES COMPILED STATUTES CITED. 



PAOI. 



U. S. Comp. Stat. 1916, § 1242.. 168 |U. S. Comp. Stat. 1916, } 6009.. 713 



UNITED STATES JUDICIAL CODE CITED. 



PAOI. 



Judicial Code, § 265 168 



UNITED STATES CRIMINAL CODE CITED. 



PAOI. 



U. S. Crim. Code, § 37 828 

U. S. Crim. Code, f 295 737 



PAOB. 



U. S. Crim. Code, } 335. 



NEW YORK STATE CONSTITUTION CITED. 



PAOI. 

Const, generally 631, 692 

776, 782, 789, 791 

795, 797, 802 

Const, art. 1, § 2 692 

Const, art. 1, §6 5,626, 627 

672, 700, 786 
Const, art. 1, § 8 786, 788, 790 



PAOB. 

Const, art. 1, § 19 358, 672, 679 

680 

Const, art. 3 , 629, 630 

Const, art. 3, § 1 626, 627 

Const, art. 3, § 15 282-284 

286, 287 
Const, art. 3, § 17 626-628, 630 



NEW YORK REVISED STATUTES CITED. 



R. 8. pt. 2, chap. 8, tit. 1, § 50 
et seq 604 



2 R. S. 136, 5 3 . . . 214, 218, 220, 221 
2 R. S. 146, § 50 et seq 604 



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lxviii 



CONSOLIDATED LAWS CITED. 



REVISED LAWS CITED. 



PAGB. 



R. L. of 1813, chap. 102, § 10 
et seq 604 



2R. L.200, 5 10 et seq. 



PAGE. 

. 604 



GENERAL LAWS CITED. 



General Laws. fags. 

chap. 11, { 30 et seq 644 

chap. 35, 5 15 882 

chap. 38, 5 121 '. 176-179 

181, 182 



General Laws. taqm. 

chap. 50 812, 813 

chap. 50, 55 4, 131 812, 813 



GENERAL LAWS CITED BY SHORT TITLES. 



General Corporation Law. pao». 

§15 882 

Insurance Law. 

5 121 176-179, 181, 182 



Negotiable Instruments Law. pagb. 

generally 812, 813 

55 4, 131 s 812, 81J 

Public Lands Law. , 

5 30 et seq 644 



' CONSOLIDATED LAWS CITED. 



Consolidated Laws. paob. 

ohap. 2, 5 114 15-18 

chap. 2, 5120 621 

chap. 4 298 

chap. 4, 5 2 301 

chap. 12, 55 230, 231 66 

ohap. 12, 5 232 66, 67 

chap. 12, 5 233 66 

chap. 13, 5 21 28-30, 342 

344, 350 

chap. 13, 5 91 572 

chap. 13, 5 103 512, 513 

chap. 14, art. 7 95, 96 

chap. 14, 5 7 533, 534 

chap. 14, 5 7, subd. 1 696 



Consolidated Laws. 

chap. 14, 5 10 533 

chap. 14, 55 110-112 95, 96 

ohap. 14, 5 115 95 

ohap. 16 368, 361 

ohap. 16, art. 47 (new) 626 

628, 629, 431 
chap. 16, 55 1030-1039, as 

amd 631 

chap. 16, 55 120Orl210 (new). 628 
629, 631 

ohap. 18, 55 21, 41 853 

chap. 18, 5 52 854 

chap. 18, 5 61 852-856 

chap. 18, 5 62 851 



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CONSOLIDATED LAWS OITED. 



lxix 



Consolidated Laws, 
chap. 18, § 62, aubd. 2. . . . 851^7 

ehap. 18, §71 "854 

chap. 22, §30 270 

chap. 22, § 39 25, 26 

chap. 22, §93 946 

chap. 22, §110 946,947 

chap. 23, § 3, subd. 1. . 361 

chap. 23, §10 621 

chap. 23, § 32 518 

chap. 23, §§90, 91.... 137 

chap. 25, § 137. . . 352-857 

chap. 25, § 290, subd. 3 (new). 558 

chap. 28, § 65 (new) 183 

chap. 28, § 121 175, 178, 179 

181-183 

chap. 28, § 121 (new)*. . . 174, 175 

178-183, 186, 186 

chap. 30, art. 19 128 

chap. 30, § 88, subds, 3, 4. . . 829 

ehap. 30, §115 920 

chap. 30, §477 .. 829 

chap. 30, §753 22 

chap. 30, § 753, aubd. 5. t . .» 22 

chap. 30, § 773 888 

chap. 31 406, 406 

chap. 31, §2 404 

chap. 31, §94 406 

chap. 31, §§ 161, 162. . . . . ... - • 20 

chap. 33, §2 25 

chap. 33, §9 417 

chap. 33, §§ 19, 20 106 

chap. 38 812, 813 

chap. 38, §§ 4, 131 812, 813 

chap. 40, §§ 160-166 783-786 

chap. 41, art. 5 (new) .... 214, 215 
> 223, 224, 875-877 

chap. 41, § 85 (new). . .*.*.,, 314 

385, 387 

chap. 41, § 87 (new) 217 

chap. 41, § 98 (new) 217, 876 

chap. 41, § 99 (new) .....:... 876 
chap. 41, § 100 (new) 217 

876, 877 
chap. 41, § 100, rule 1 (new) 210 

876 
ehap. 41, § 100, rule 2 (new). . 210 



Consolidated Lawn. paob. 

ehap. 41, § 100, rule 4 (new). . 210 

215, 217, 218 
chap. 41, § 100, rule 4, subd. 

1 (new) 876, 877 

chap. 41, § 124 (new). . . . 209, 715 

chap. 41, § 126 (new) 903 

ehap. 41, § 134 (new) 876 

chap.. 41, § 144 (new). . . . 209, 223 

294, 710*712, 877 

chap. 41, § 144, subd. 1 (new). 216 

217, 710-712, 875, B76 

chap. 41, § 144, subd. 2 (new) . 710 

711, 875 

chap. 41, § 144, subd, 3 (new). 216 

217, 223, 710^713, 875, 876 

chap. 41, § 145 (new)... . 216, 217 

224, 876, 880 

chap. 41, § 150 <n*W) 73 

ohap.46,§35 645 

dhap.48 1,2, 9, 428; 537-539 

chap. 48, § 35 428 

ehap. 48> § 66, subd. 5. .... , 585 

536, 718, 720 

ehap. 48, § 66, sribd. 12. . . 3, 535 

586-539,717-720 

chap. 48, fr71 539, 718-720 

ehap. 48, § 72.. . . 4f-d, 8, 9, 535 

539v 718-720 

ehap. 48, § 74. 585,638, 539 

ehap. 60, §41 550 

chap. 50, §94 920 

chap. 50, § 450. 237 

ehap. 53 238 

chap. 53, § 100 236, 238 

chap. 53, §120 238 

chap. 53, §133 820 

eha?. 53, §§ 137, 133,,,, 815, 891 

chap. 53, §§ 164, 165 237 

chap. 56, §93 (97) 631 

chap. 59, §13 663 

chap. 59, § 25 : . .519-522 

chap. 59, §26 521 

chap. 60, art. 9-A 24, 26, 27 

chap. 60, art. 10, as amd 554 

chap: 60, art. 16 (new) 636 

641, 643 



* See Laws of 1917,. ehap. 440.— [R«p. 



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lxx CONSOLIDATED LAWS CITED BY SHORT TITLES. 



Consolidated Laws* 

chap. 60, § 156 731 

chap. 60, §181 882 

chap. 60, {§ 208-2191 (new).. . 26 

27 

chap. 60, § 21Qj (new) 26 

chap. 60, § 2191 (new) 26, 27 

chap. 60, § 220, subd. 2 382 

chap. 60, § 293 746 

chap. 60, §294 748 

chap. 60, § 351 (new)... . 638, 640 
chap. 60, § 351-a (new). . 642, 643 

chap. 60, § 362 (new) 640-642 

chap. 60, § 362, subd. 3 (new) . 640 

chap. 60, § 374 (new) 636 

chap. 63, §64 2 

chap. 67 42,44,48,49, 51 

74, 110-112, 288, 291, 338 
358, 360, 361, 365, 432, 434 
442, 443, 494, 609, 613, 626 
627, 672, 674, 677, 680, 913 
914-917, 945, 947, 950-952 

chap. 67, §2...' 41,48, 49 

358, 360, 443 

chap. 67, §2,cl. 1 41 

chap. 67, § 2, group 14 441 

chap. 67, § 2, group 25. . . 358-360 

chap. 67, § 2, group 34 625 

chap. 67, § 2, group 41 110 

chap. 67, § 2, group 43 359 

chap. 67, § 2, group 44.. . 359, 361 
chap. 67, § 2, group 45 2 .... 442 

chap. 67, § 3, subd. 3 41 

359, 361 



Consolidated Laws. pacm. 

chap. 67, § 3, subd. 4. . . 41, 49-51 

359, 360, 442 

chap. 67, § 3, subd. 5 41, 49 

359, 443 

chap. 67, § 3, subd. 6 41 

chap. 67, § 3, subd. 7 41, 49 

51, 439, 660, 661, 679, 660 
chap. 67, §10 41,46, 51 

338, 661 
chap. 67, § 15, subd. 3. . 672, 806 
chap. 67, § 15, subd. 7 (new) . 626 
chap. 67, § 15, subd. 8 (new) . 626 

627, 628 

chap. 67, § 16, subd. 4 78 

chap. 67, § 18 365, 661 

662,945-947 
chap. 67, § 20 438, 441, 615 

616, 673 

chap. 67, §21 335, 439 

chap. 67, § 22 806 

chap. 67, §23 616, 673 

chap. 67, §28 364, 365 

chap. 67, §65 672 

ohap.67,§68 673 

chap. 67, § 72 363 

chap. 67, §74 806, 807 

chap. 67, §116 364, 365 

chap. 72 262-264 

523, 524, 526 

chap. 72, §2 263, 524 

chap. 72, §3 524, 525 

ohap. 72, §8 263 



CONSOLIDATED LAWS CITED BY SHORT TITLES. 



Arbitration Law. paoi. 

generally. . 262-264, 523, 524, 526 

§2 263, 524 

§3 524, 525 

§8 263 

Banking Law. 

§114 15-18 

§ 120. 621 



Business Corporations Law. pioa. 

generally 298 

§2 301 

Debtor and Creditor Law. 

§§230,231 66 

§232 66, 67 

§233 66 



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CONSOLIDATED LAWS CITED BY SHOBT TITLES, lxxi 



Decedent Estate Law. pmb. 

f 21 28-30, 342, 344, 350 

§91 572 

f 103 512, 513 

Domestic Relations Law. 

art.7 05, 96 

§ 7 533, 584 

§7,subd.l 096 

§10 533 

f § 110-112 95, 96 

J 115 95 

Education Law. 

generally 358, 361 

art. 47 (new)... 626, 628, 629, 631 

f § 1030-1039, as amd 631 

fl 1200-1210 (new). . 628, 629, 631 

Executive Law. 

$121,41 853 

§52 854 

§61 852-856 

§62 851 

§62,subd. 2 851-S57 

§71 854 

General Construction Law. 

§30 270 

§39 25, 26 

§93 946 

§ 110 946, 947 

General Corporation Law. 

§3,subd. 1 361 

§10 521 

§32 518 

§§90,91 137 

Highway Law. 

§137 352-357 

§ 290, subd. 3 (new) 558 

Insurance Law. 

§65 (new) 183 

§ 121 175, 178, 179, 181-183 

§121 (new)* 174, 175 

178-183, 185, 186 

Judiciary Law. 

art. 19 128 

§ 88, subds. 3, 4 829 

§115 920 

§ 477 829 

§753 22 



Judiciary Law. pass. 

§753, subd. 5 22 

§773 388 

Labor Law. 

generally 405, 406 

§2 404 

§94 406 

§§ 161, 162 20 

Lien Law. 

§2 25 

§9 417 

§§19,20 106 

Negotiable Instruments Law. 

generally 812, 813 

§§4,131 812, 813 

Personal Property Law. 

art. 5 (new) 214, 215, 223 

224, 875-877 

§ 85 (new) 314, 385, 387 

§87 (new) 217 

§98 (new) 217, 876 

§99 (new) 876 

§ 100 (new) 217, 876, 877 

f 100, rule 1 (new) 210, 876 

§ 100, rule 2 (new) 210 

§ 100, rule 4 (new) 210, 215 

217, 218 
§ 100, rule 4, subd. 1 (new). . 876 

877 

§124 (new) 209, 715 

§126 (new) 903 

§134 (new) 876 

§ 144 (new) 209, 223, 224 

710-712, 877 

§ 144, subd. 1 (new) 216, 217 

710-712, 875 
876 

§ 144, subd. 2 (new) 710, 711 

875 

§ 144, subd. 3 (new) 216, 217 

223, 710-713, 875 
876 

§145 (new) 216, 217 

224, 876, 880 

§150(new) 73 

Public Lands Law. 

§35 645 



* See Laws of 1917, chap. 440. — [Rep. 



Digitized by 



Google 



Ixxii CONSOLIDATED LAWS CITED BY SHORT TITLE8, 



Public Serv. Commissions Law. !*«■. 

generally ; 1, 2, 9, 428 

537-539 

§35 428 

i 66, subd. 5 535, 536, 718 

720 

§ 66, subd. 12 3, 535-539 

717-720 

§71 539,718-720 

§72 4-6, 8, 9, 535, 539 

718-720 
§74 535,638, 539 

Real Property Law. 

§41 550 

§94 920 

§450 237 

Second Class Cities Law. 

generally 238 

«100.. 236, 238 

§120 238 

§133 820 

§§137,138.... 815; 821 

§§164, 165 237 

State Finance Law. 

§93 (97) 631 

Stock Corporation Law. 

§13 663 

§25 519-522 

§26 521 

Tax Law. 

att-9-A 24,26, 27 

art. 10, as amd 554 

art. 16 (new) 636, 641 

643 

§156 731 

§181 882 

<§§ 208-2191 (new) 26, 27 

§219j(new) 26 

§ 2191 (new) 26, 27 

§220, subd. 2 382 

§293 746 

§294 748 

§351 (new) 638, 640 

§ 351-a (new) 642, 643 

§ 362 (new) 640-642 



Tax Law. baosj 

§ 362, subd. 3 (new). 640 

§374 (new) 636 

Transportation Corporations Law. 

§64 2 

Workmen's Compensation Law. ' 
generally. . . 42, 44, 48, 49, 51, 74 
110-112,288,291,338 
358, 360, 361, 365, 432 
434, 442, 443, 494, 609 
613, 626, 627, 672, 674 
677, 680, 913*917, 945. 
947,960r952 

§ 2 41,48, 49, 358, 380, 443 

§2,cl. 1 41 

§ 2, group 14 441 

§ 2, group 25 358-360. 

§ 2, group 34 • . 625 

fr 2, group 41 110 

§2 V group 43 1 359 

§ 2, group 44 359,-361 

§2, group 45 2 442 

§3, subd. 3 41,359, 361 

§ 3, subd. 4 41, 40-51, 359 

360, 424 

§ 3, subd. 5 41, 49, 359, 443 

§3, subd. 6 41 

§3, subd. 7 41,49, 51 

439, 660, 661, 679, 680 

§10 41,46,51,338, 661 

§ 15, subd. 3 672, 806 

§ 15, subd. 7 (new) 626 

§ 15, subd. 8 (new) 626-328 

§16, subd. 4 78 

§ 18 365, 661, 662, 945-947 

§ 20 438* 441, 616, 616, 673 

§21 .335, 430 

§22 806 

§23.,.,.:..... 616, 673 

§28 364, 365 

§65.. 672 

§68 673 

§ 72 363 

§74 806, 807 

§116 364, 365 



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SESSION LAWS CITED. 



lxxiii 



SESSION LAWS CITED. 



PAG*. 

1787, chap. 69 603, 604 

1836, « 457 644 

1863, « 20 630 

1865, • 585 631 

1866, * 824 22 

1875, * 28 22 

1877, « 416, f 1, aubd. 263. . 947 

1880, « 36 203-205 

1880, « 317 631 

1883, « 372 25 

1886, « 488 176, 177, 179 

181, 182 

1887, « 429.. . 177, 179, 181, 182 

1888, « 555 203-205 

1890, « 450 94 

1891, * 56 631 

1891, * 105, § 417 et teq., 

as amd 390 

1892, * 399 552 

1892, « 466 630 

1892, * 687, §15 882 

1892, a 600, § 121 176-179 

181, 182 

1894, « 317, § 30 et seq 644 

1895, - 240 882 

1895, « 751, §173 352-357 

1897, * 612 812,813 

1897, * 612, §§ 4, 131 . . 812, 813 

1899, a 301 836 

1901, " 466, chap. 8. . . . 124*126 

1901, a 466, §149 852 

1901, « 466, § 331 122, 123 

fc 125, 126 

1901, " 466, §§332,333... 122 

123-126 

1901, • 466, §334 124r-126 

1901, * 466, §335 124-127 

1901, « 466, § 336 124-126 

1901, a 466, §898 192 

1901, « 466, § 1583. ... 853, 857 

858 

1901, « 513.. 177-179, 181, 182 

1902, a 371 783 

1903, « 106. . . 178, 179, 181, 182 



PAQl. 

1903, chap. 147. . .., ... 699, 700, 702 

1903, '«' 147, §4 700-702 

1905, " 559 352-357 

1905, • 724, as amd. . . . 915, 950 

1905, « 724, §15 916 

1905, « 736 555, 556 

1906, " 125 2,5,6,8,9,555 

556, 906 

1906, * 365 701 

1906, « 604 906 

1907, * 227 8 

1907, « 429, §72 4, 5 

1908, a 196 701 

1908, « 452..... 238 

1908, « 452, art. 6, § 18 239 

1909, « 12 298 

1909, « 12, §2 301 

1909, a 17, §§ 230, 231 66 

1909, * 17, §232 66, 67 

1909, « 17, §233 66 

1909, * 18, §21 .'..,.28-30 

342,344, 350 

1909, « 18, §91 572 

1909, " 18, § 103 512, 513 

1909, « 19, art. 7 95, 96 

1909, * 19, §7 533,534 

1909, « 19, § 7, subd. 1 696 

1909, * 19, §10 533 

1909, " 19, §§ 110-112. . 95, 96 

1909, « 19, §115 95 

1909, « 23, §§21,41 853 

1909, « 23, §52 854 

1909, " 23, §61 852-856. 

1909, « 23, §62 851 

1909, « 23, § 62, subd. 2. . . . 851 

852-857 

1909, * 23, §71 854 

1909, " 27, §30 270 

1909, « 27, §39 25, 26 

1909, " 27, §93 946 

1909, * 27, §110...... 946, 947 

1909, * 28, §3, subd. 1 361 

1909, « 28, §10 521 

1909, « 28, §32 518 



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lxiriv 



SESSION LAWS CITED. 



PAQ1. 

1909, chap. 28, §§ 90, 91 137 

1909, * 30,5137 352-357 

1909, " 30, § 290, subd. 3 

(new) 558 

1909, u 33, §65 (new) 183 

1909, u 33, § 121. . 175, 178, 179 

181-183 
1909, " 33, § 121 (new)*. ... 174 

175, 178-183, 185, 186 

1909, * 35, art. 19 128 

1909, " 35, § 88, subds. 3, 

4 829 

1909, « 35, §115 920 

1909, « 35, §477 829 

1909, * 35, §753 22 

1909, u 35, § 753, subd. 5. . . 22 

1909, * 35, §773 388 

1909, * 36 405, 406 

1909, " 36, §2 404 

1909, « 36, §94 406 

1909, " 36, §§161, 162 20 

1909, * 38, §2 25 

1909, « 38, §9 417 

1909, " .38, §§19,20 106 

1909, " 43 812,813 

1909, « 43, §§4, 131... 812, 813 
1909, a 45, art. 5 (new) 214 

215, 223, 224, 875-877 

1909, • 45, §85 (new) 314 

385, 387 

1909, u 45, §87 (new) 217 

1909, u 45, § 98 (new) 217 

876 

1909, « 45, § 99 (new) 876 

1909, u 45, § 100 (new) 217 

876, 877 
1909, « 45, § 100, rule 1 

(new) 210, 876 

1909, * 45, § 100, rule 2 

(new) 210 

1909, * 45, § 100, rule 4 

(new) 210, 215 

217, 218 
1909, « 45, § 100, rule 4, 

subd. 1 (new).... 876 
877 



PAQl. 

1909, chap. 45, § 124 (new) 209 

715 

1909, u 45, § 126 (new) 903 

1909, " 45, § 134 (new) 876 

1909, * 45, § 144 (new) 209 

223, 224, 710-712, 877 
1909, " 45, § 144, subd. 1 

(new) 216, 217 

710-712, 875, 876 
1909, " 45, § 144, subd. 2 

(new)... 710,711, 875 
1909, * 45, § 144, subd. 3 

(new) 216, 217 

223, 710-713, 875, 876 

1909, u 45, § 145 (new) 216 

217, 224, 876, 880 

1909, u 45, §150 (new) 73 

1909, u 50, §35 645 

1909, * 52, §41 550 

1909, « 52, §94 920 

1909, « 52, §450 237 

1909, « 55 238 

1909, * 55, §100 236,238 

1909, a 55, §120 238 

1909, u 55, §133 820 

1909, " 55, §§137,138 815 

821 

1909, u 55, §§164,165 237 

1909, " 58, §93 (97) 631 

1909, " 61, § 13 663 

1909, * 61, §25 519-522 

1909, • 61, §26 521 

1909, « 62, art. 9-A. . 24,26, 27 
1909, " 62, art. 10, as amd. . 554 
1909, " 62, art. 16 (new).. . . 636 

641, 643 

1909, « 62, §156 731 

1909, « 62, § 181 882 

1909, « 62,§§208-2191(new). 26 

27 
1909, « 62, § 219j (new) .... 26 
1909, « 62, § 2191 (new) .... 26 

27 
1909, * 62, § 220, subd. 2. . . 382 

1909, « 62, §293 746 

1909, • 62, §294 748 



* See Laws of 1917, chap. 440.— [Rep. 



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SESSION LAWS CITED. 



lxxv 



1909, ofaap. 

1909, - 

1909, a 

1909, - 

1909, u 

1909, a 

1909, « 

1909, a 

1909, « 

1909, « 

1909, « 

1909, « 

1909, • 

1909, " 

1909, * 

1909, « 

1910, « 
1910, • 

1910, « 

1910, « 

1910, * 

1910, « 

1910, a 

1910, " 

1910, « 

1910, " 

1910, • 

1910, * 

1910, * 

1910, a 

1910, u 

1910, a 

1911, « 
1911, a 



PAOl. 

62, §351 (new) 638 

640 

62, §351-a(new)... 642 

643 

62, §362 (new) 640 

641, 642 
62, § 362, subd. 3 

(new) 640 

62, §374 (new) 636 

65 203 

88, §§160-166.. 783-786 

219, §64 2 

240 178, 179 

181, 182, 512, 513 



268. 
273. 
310. 



854 
701 
66 
746 
521 
301 
836 



421 

484 

492 

140 358, 361 

140, art. 47 (new)... 026 
628, 629, 631 
140, §§ 1030-1039, 

as amd 631 

140, ' §§ 1200-1210 

(new)... 628,629, 631 
168. . 178, 179, 181, 182 

266 815,818, 821 

374 558 

480 1,2,9,428 

537-539 

480, §35 428 

480, §66, subd. 5.. 535 
536, 718, 720 
480, §66, subd. 12. 3 
535-539, 717-720 
480, §71.. 539, 718-720 
480, § 72 .. . . . 4^6 

8, 9, 535, 539, 718-720 

480, §74 535,538 

539 
638... 178, 179, 181, 182 
668... 178,179,181, 182 

14 851-857 

204 852-856 



1911, chap. 
1911, « 
1911, « 
1911, " 
1911, " 
1911, « 



1911, ■ 

1911, « 

1911, • 

1912, a 

1913, « 
1913, u 

1913, u 

1913, ■ 

1913, « 

1913, " 

1914, « 



1914, * 

1914, * 

1914, « 

1914, « 

1914, « 

1914, u 

1914, « 

1914, ■ 

1914, u 

1914, « 

1914, « 



1914, tf 
1914, « 



PAOB. 

. 746 
. 183 
. 192 
. 701 
. 853 



302 

416 

455 

468 

568 

571 73,209, 210 

214-218, 223, 224, 314 

385, 387, 710-713, 715 

875-877, 880, 903 

634 631 

736 701 

866 20 

268 731 

179 835, 836 

181 175,178, 179 

181-183 

319 352-357 

569 95, 96 

801 701 

816 945 

41.... 42,44,48,49, 51 

74, 110-112, 288, 291 

338, 358, 360, 361, 365 

432, 434, 442, 443, 494 

609, 013, 626, 627, 072 

674, 677, 680, 913-917 

945, 947, 950-952 

41, §2... 41, 48, 49, 358 

360, 443 

41, § 2, el. 1 41 

41, §2, group 14.... 441 

41, § 2, group 25. . . . 358 

359, 360 



41, §2, group 34.. 
41, §2, group 41.. 
41, §2, group 43.. 
41, § 2, group 44.. 



025 
110 
359 
359 
861 
41, § 2, group 45 2 . . 442 

41, §3, subd. 3 41 

359, 361 

41, §3, subd. 4 41 

49-51, 359, 360 
442 

41, §3, subd. 5 41 

49, 359, 443 
41, §3, subd. 6 41 



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lxxvi 



SESSION LAWS CITED. 



1914, chap, 

1914, u 

1914, a 

1914, u 

1914, u 

1914, « 

1914, « 

1914, « 

1914, « 

1914, « 

1914, a 

1914, a 

1914, « 

1914, a 

1914, « 

1914, « 

1914, a 

1914, a 

1914, « 

1914, a 

1914, a 



1914, 
1914, 
1914, 
1914, 
1915, 
1915, 
1915, 
1915, 
1915, 



1915, 
1915, 
1915, 
1915, 
1916, 
1916, 
1916, 
1916, 



PAGE. 

41, §3, subd. 7 41 

49, 51, 439 
660, 661, 679, 680 

41, §10 41,46, 51 

338, 661 
41, § 15, subd. 3.... 672 
806 
41, § 15, subd. 7 

(new) 626 

41, § 15, subd. 8 

(new) 626-628 

41, §16, subd. 4.... 78 

41, §18 365, 661 

662,945-047 

41, §20 438, 441 

615, 616, 673 

41, §21 335, 439. 

41, §22 806 

41, §23.. 616, 673 

41, §28 364, 365 

41, §65 672 

41, §68 673 

41, §72 363 

41, § 74 806, 807 

41, i 116 364, 365 

217, §25 &23 

217, § 141 391 

217, §146 390 

217, § 215 et seq., 

as amd 390 

346 836 

369, §114 15-18 

369, §120 621 

443, §2701 824r-827 

117 663 

170, §116 268-271 

279, §6, subd. 2.... 412 

279, §8 516 

279, §17 226,515 

517 

352 95, 96 

386 20 

640 700, 702, 703 

653 406 

85 239 

323 382, 746 

420 700,702, 703 

453 95 



1916, chap, 

1916, •" 

1916, « 

1916, « 

1916, « 

1917, • 
1917, • 
1917, « 
1917, « 
1917, « 

1917, a 

1917, * 

1917, u 

1917, u 

1917, " 

1917, « 



1917, « 

1917, « 

1918, « 
1918, « 
1918, « 
1918, u 
1918, " 
1918, a 
1918, « 
1918, « 



1918, 
1919, 
1919, 
1919, 
1919, 
1919, 



1919, 
1919, 



1920, « 

1920, « 

1920, u 

1920, a 

1920, u 



PAOB. 

507; 25,106, 417 

571 352, 355 

604 5,6,8, 9 

612 5,6,8, 9 

622 78, 110, 442 

443, 626 

18 238 

149 95 

400 123 

401 852 

440 174, 175 

178-183, 185 

440, §2... 179 

440, §3... 179, 180, 185 

490 882 

666 5, 6, 8, 9, 906 

694 404 

705 41, 48-51, 110 

358-361, 439, 441-443 
616, 625, 626, 660, 661 
672, 673, 679, 680, 806 

726 24, 26, 27 

769 558 

141 183 

267 519 

271 26, 27 

280....\, 95 

404 237 

606 700,702, 703 

607, §1 944, 945 

634 364, 365 

442, 661, 662, 946 
947 

635 441 

138 26 

165 852-856 

202 695, 696 

626 382 

627 636,638,640 

# 643 

628 26 

629 438,441, 615 

616, 673 

58 640 

113 26 

137 282 

191 640-643 

215 238 



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CODE OF CIVIL PROCEDURE CITED. 



lxxvii 



paqi. 

1920, chap. 275 262-264 

523, 524, 526 

1920, * 275, | 2 263,524 

1020, * 275, §3 524,525 

1020, u 275, §8 263 

1020, * 373 106 

1020, " 433 05 

1920, « 478 834^837 

1920, * 532 672 

1920, « 533 672 



PA01. 

1920, chap. 542 3,4,6,8, 

535^537, 539, 718 

1920, * 637 428 

1920, u 640 26 

1920, • 643 746 

1920, * 734 124 

1920, " 760 626-629, 631 

1920, « 760, §§1,2 628 

1920, u 761 920 

1920, « 942.. . 281, 282, 868, 869 



CODE OF PROCEDURE CITED. 



Code of Procedure. 
§ 142 



PAttl. 

. 414 



Code of Procedure. 
§227 



PAttl. 

. 22 



CODE OF CIVIL PROCEDURE CITED. 



Code of Civil Procedure. paoi. 

generally 608 

chap. 14, tit. 2, art. 1 121 

chap. 16, tit. 2, art. 5 226 

chap. 17, tit. 2 56 

chap. 17, tit. 8 263, 264 

14 (old) 22 

14, subd. 5 (old) 22 

[231 922 

264 699, 700, 703, 705, 944 

1382 331, 415 

1388 920 

1432, subd. 1...'. 171 

, 438 835, 837 

1438, subd. 1 835-838 

i 438, subds. 2, 3 835, 836 

i 438, subd. 4 835, 837 

i 438, subd. 5 834-837 

1438, subd. 6 835 

,438, subd, 7 835, 837 

i 439 834-837 

,448 3 

,456 395 

(481 137, 414 

483 415 



Code of Civil Procedure. paqi. 

§484 121 

§484, subd. 7 121 

§ 497 902, 903 

§500 831, 832 

§501 861 

§519 < 12 

§ 521 333 

§§524,526 831, 832 

§ 531 880 

§537 832 

§ 546 414, 415, 880 

§ 636, subd. 2 836, 837 

§638 837 

§827 907 

§828 36 

§ 829 33, 35-37, 921 

§885 22 

§§935,936 62, 63 

§§952,953 363, 364 

§956 364 

§961d 202, 203 

§970 400 

§ 976 109, 586, 860 

§999 312, 313 



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lxxviii 



PENAL LAW CITED. 



Code of Civil Procedure. pagb. 

§ 1013 555 

§1015 907 

§1204 333, 395 

§ 1214 395 

§1279 131, 174, 509 

§1317 913 

§ 1341 946, 947 

§1353 38 

§1544 399, 400 

§1546 400 

§1689 121 

§§ 1743-1745 532, 533 

§1750 534 

§ 1751 695, 696 

§ 1762 et seq 600, 604, 608 

§§1765, 1770 606 

§1902et8eq 109, 112 

§1914 413 

§§ 1942-1944 (old) 66 



Code of Civil Procedure. pagb. 

§2140 429 

§2231 56,57,405, 406 

§ 2231, subd. 1-a 281, 282 

868, 869 

§2231, subd. 2 57 

§2244 412, 413 

§2262 869 

§2323 735 

§ 2329 734, 735 

§2366 263, 264 

§ 2481 (old) 826 

§§ 2490, 2510 (new) 826 

§2538 (new) 341 

§2614 (new) 351 

§2615 (new) 826 

§ 2701 (new) 824-827 

§ 2703, subd. 5 (new) . 826 

§2763 (new) 566 

§3246 623 



CODE OF CRIMINAL PROCEDURE CITED. 



Code of Criminal Procedure. pagb. 
§§685^91 122, 1251 



Code of Criminal Procedure. paqb. 
§873 922 



PENAL CODE CITED. 



Penal Code. pagb. 

§170 652 

§ 461 783 

§§468a-468e 783 



Penal Code. 
§469.... 
§675.... 



PAOB. 

. 783 

. 787 



PENAL LAW CITED. 



Penal Law. **«. 

§2 815, 819 

§70 696 

§§ 160, 161 ... . 777, 783-786, 791 
792-794, 801-803, 805 

§§ 162-166 783-786 

§372 815, 819 



Penal Law. paob. 

§580 654,803, 804 

§580, subd. 5 654 

§582 652, 803 

§2013 910 

§2183 815, 819 



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STATUTES OFSTATES AND TERRITORIES CITED, lxxix 



RULES CITED. 



Supreme Court Rules. 
Trial Term, First Judicial Dis- 
trict, N. Y. County, rule 5. 400 
New York City. 
Municipal Court Rules, rule 

35 226, 515-617 

Bd. Stand. & Appeals, Eleva- 
tor Rules, rule No. 12 405 



New York Cotton Exchange. pam. 

Rules generally 303 

Yonkers. 

Police Rules, generally 815 

819, 821 

Police Rules, rules C, 33 817 

821 



GREATER NEW YORK CHARTER CITED. 



Greater New York Charter. paqi. 

chap. 8 124-126 

§149 852 

§331 122, 123, 125, 126 

§§332,333 122-126 

§334 124-126 



Greater New York Charter. paoi. 

§335 124-127 

§336 124-126 

§898 192 

§1583 853,857, 858 



MUNICIPAL COURT CODE CITED. 



Municipal Court Code. pagi. 

§6, subd. 2 412 

§8 516 



Municipal Court Code. pass. 

§17 226,515-517 



BARGE CANAL ACT CITED. 



Barge Canal Act, § 4 700-702 



STATUTES OF STATES AND TERRITORIES CITED. 



Arkansas. pass. 

Const, art. 2, §§ 17, 18, 21.. . . 619 

Const, art. 12, § 6 619-622 

Manufacturers and Traders 

Act 617 

Acts of 1868-69, No. 92 617 



Arkansas. paqi. 

Acts of 1913, act 113 617-622 

Acts of 1913, act 113, § 4 618 

619, 622, 623 
Acts of 1913, act 113, § 10. . . . 618 
Acts of 1913, act 113, § 19.. 618, 622 



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Ixxx 



CODE OF LEGAL ETHICS CITED. 



Arkansas. pagi. 

Acts of 1913, act 113, § 36. . . . 618 

619, 621, 622 

Acts of 1913, act 113, J 56.. . . 622 

623 
Acts of 1913, act 113, $ 61. . . . 619 
Kirby's Digest, Ark. Stat. § 837 
etseq 617 



Connecticut. pagi. 

Statute of Foreclosure 233 

Minnesota. 

Laws of 1917, chap. 215 787 

Laws of 1917, chap. 463 787 

Pennsylvania. 

Employers' Liability Law. . . . 915 
Washington. 

Rem. & Bal. Code, § 2564. ... 787 



FOREIGN STATUTES CITED. 



Canada. 
Laws generally. 



pagi. I England. 
. 796 Statute of Frauds . 



PAGB. 

. 221 



MUNICIPAL ORDINANCES, ETC., CITED. 



Buffalo. PAQB - 

Ordinances, chap. 4, § 44. 688-690 

New York City. 
Building Code, $ 374, siib<L 2. 405 
Sanitary Code, generally 630 

Yonkers. 
General Ordinance No. 2, Jan. 
2,1908, §9 238 



Yonkers. **a. 

Sewer Ordinance, Aug. 28, 

1911 236 

Sewer Ordinance, Dec. 14, 

1914 236 

Police Rules 815, 819, 821 

Police Rules, rules C, 33 817 

821 



UNITED STATES PROCLAMATIONS, REGULATIONS, 

ETC., CITED. 



President's Proclamations. pagi. 

State of War with Germany, 

April 6, 1917... 841 

Possession of N. Y. Telephone 

Co 646 



President's Executive Orders, pagi. 
Shipping Order, July 11, 1917. 840 

842 
Shipping Order, June 18, 1918. 842 
Shipping Order, Deo. 3, 1918. 842 



CODE OP LEGAL ETHICS CITED. 



Code of Legal Ethics, canon 27 . 



PAOB. 

. 199 



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Casts 



nr 

APPELLATE DIVISION 

0& TUB 

SUPREME COURT 

OP THE 



Gerald Morrell, Respondent, v. Brooklyn Borough Gas 
Company, Appellant. (Appeal No. 1.) 

Second Department, January 7, 1921. 

0*» *nd electricity — rait to restrain gas company from enforcing 
increased rates imposed without authority o£ Public Service Com* 
mission — order granting injunction pendente lite affirmed and 
parties left to trial. 

In a suit by a customer to restrain a gas company from enforcing rates 
claimed by aaid company to have been fixed by it, independent of the 
Public Service Commission after the statutory rate had been adjudged 
confiscatory, and to have such rates declared to be unreasonably com- 
pensatory and void, held, that an order of the Special Term granting an 
injunction pendente lite should be affirmed so that the issues arising 
between the parties may be determined by trial and not on affidavits. 

Blackmar, J., and Jxkks, P. J., dissent, with opinion. 

Appeal by the defendant, Brooklyn Borough Gas Company, 
from an order of the Supreme Court, made at the Kings Special 
Term and entered in the office of the clerk of the county of 
Kings on the 27th day of September, 1920, granting an injunc- 
tion pendente lite. 

Defendant manufactures and sells gas in the thirty-first 
ward of the borough of Brooklyn. The complaint charged 
that notwithstanding the provisions of chapter 48 of the 
App. Div.— Vol. CXCV. 1 



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2 Morrell v. Brooklyn Borough Gas Co. No. 1. 

Second Department, January, 1921. [Vol. 106. 

Consolidated Laws regarding gas rates, the Public Service 
Commission of the State of New York for the First District, 
on July 2, 1920, had made and issued an order to defendant 
in the following terms: 

"I. That the maximum price to be charged by the Brooklyn 
Borough Gas Company for gas shall be as follows: 

"(a) On and after the date of this order, to and including 
July 31, 1920, $1.15 per thousand cubic feet of gas sold and 
delivered consumers. 

" (b) On and after August 1, 1920, to and including July 
31, 1921, $1.40 per thousand cubic feet of gas sold and delivered 
to consumers, except as hereinafter provided. 

" II. That said Brooklyn Borough Gas Company be and it 
hereby is authorized and required not later than October 1, 
1920, to change its standard from its present 22 candle power 
standard to the British Thermal Unit (B. T. U.) standard, 
the number of heating units to be furnished to be not less than 
525 B. T. U.'s per thousand cubic feet of gas manufactured, 
distributed and sold, which British Thermal Unit standard is 
hereby fixed by the Commission." 

Hie complaint set forth that such order was beyond the 
power of said Commission, in that it could not fix a rate in 
excess of the maximum allowed by statute, and that the one 
dollar and forty cent rate is unreasonable, excessive and exor- 
bitant, and further that after such advance in rate it had no 
power to change the standard of quality fixed by the statute 
(Laws of 1906, chap. 125) to a British thermal unit standard of 
525 heat units per 1,000 cubic feet. 

It further alleged: "That the plaintiff is informed and 
verily believes that the said defendant threatens and is about 
to enter the plaintiff's premises to change the meter to conform 
to the rate of $1.40 per thousand cubic feet. That should the 
plaintiff resist the officers and agents of the said defendant in 
so doing, and in any way endeavor to prevent the said trespass 
by physical force the said plaintiff will, under Section 66* of the 
Transportation Corporations Law of this State become liable 
to the payment of a heavy fine, besides suffering indignities to 
his person and damage to his property.' ' 

*Sic. See J 64.— [Rbp. 



Morbell v. Brooklyn Borough Gas Co. No. 1. 3 

App. Biv.] Second Department, January, 1021, 

Also that unless said order be declared invalid and nugatory, 
consumers of defendant's gas would institute a multiplicity of 
actions. 

There were also submitted affidavits of seven other consum- 
ers of gas furnished by defendant, who, uniting in plaintiff's 
prayer for injunction, asked plaintiff to sue for the benefit of 
each and all of them, under section 448 of the Code of Civil 
Procedure, to which plaintiff had assented, and thereupon 
he prayed that relief be granted also on behalf of such other 
persons. 

The opposing affidavit sworn to August 2, 1020, by defend- 
ant's acting manager, referred to various proceedings in defend- 
ant's suit against the Public Service Commission, including a 
judgment entered on the report of former Justice Hughes as 
referee on August 13, 1018, and further considered by this court 
in Public Service Commission v. Brooklyn Borough Gas Co. (189 
App. Div. 62). After setting out the increasing cost of oil, 
the affiant concluded: " The rate of $1,40 allowed by the Com- 
mission is less than a reasonable and compensatory rate under 
the new oil contract. The reasonable and compensatory rate 
would be at least $1.55. Deponent attended all the public 
hearings held by the Commission preceding the order allowing 
$1.40 maximum. The plaintiff was not present at any time 
and neither was any other consumer present." 

Defendant's brief states that the argument was had on 
August fourth. At the final submission on August tenth, the 
acting manager presented a second affidavit verified on that 
day, which stated that " Defendant fixed a rate of $1.40 for 
itself entirely independently of the permission to do so granted 
by the Commission order. On July 20, 1920, defendant, on 
its own authority, promulgated, fixed, made and established 
a rate of $1.40 per 1000 cubic feet for all private consumers, 
to be charged and enforced on and after August 1st, 1920." 

It stated that defendant had filed with the Commission 
schedules showing such rate, upon which " the Commission 
allowed the change of rate from $1.15 to $1.40 on August 1st, 
1920, without requiring thirty days' notice and publication as 
also provided in said subdivision of said section."* 

* See Public Service Commissions Law, § 66, subd. 12, as amd. by Laws 
of 1920, ohap. 542.— [Rep. 



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4 Morrell v. Brooklyn Borough Gas Co. No. 1. 

Second Department, January, 1921. (Vol. 195L 

An injunction (conditional on plaintiff's filing a bond for $500 
to pay any judgment against him) was granted, restraining 
defendant and its servants from entering plaintiff's premises 
to change the meter so as to increase the rate over that 
measured before August 1, 1920, also that defendant refrain 
from collecting from plaintiff any rate in excess of one dollar 
and fifteen cents per 1,000 cubic feet. (Reported Morrett v. 
Brooklyn Borough Gas Co., 113 Misc. Rep. 65.) Defendant 
appealed to this court. When this motion for injunction was 
submitted, the defendant had not answered, but before it was 
granted defendant demurred to the complaint, which demurrer 
is the subject of the appeal in Morrell v. Brooklyn Borough Gas 
Co., No. S (195 App. Div. 899). 

Edward M. Bassett [Wilson W. Thompson with him on the 
brief], for the appellant. 

Judson Hyatt [John P. O'Brien, Corporation Counsel, and 
Gerald Morrell with him on the brief], for the respondent. 

Putnam, J. : 

Ordinarily this court does not review the discretion of the 
Special Term in granting or refusing an injunction pendents 
lite, on appeal from the order, but will leave the parties to the 
trial. (Smith A Sons Carpet Co. v. Ball, 137 App. Div. 100; 
Dwryea v. Auerbach, 164 id. 44; Ginsbwrg v. Wodworth Co., 
176 id. 882.) Here, however, are questions of law that seem 
to make an exception to the ordinary rule upon such appeals. 

The powers of the Public Service Commission to sanction an 
increase of rate beyond that authorized by statute have always 
been restricted to the statutory rates. The original Public 
Service Commissions Law (Laws of 1907, chap. 429, § 72) con- 
ferred the rate-making power to fix the maximum price for gas 
by the words " within lawful limits." In the present act the 
matter was stated more clearly by an amendment inserting the 
term " not exceeding that fixed by statute to be charged by such 
corporation or person, for the service to be furnished." (Consol. 
Laws, chap. 48 [Laws of 1910, chap. 480], § 72, as amd. by 
Laws of 1920, chap. 542.) In 1910, the date of the present law, 
improvements in gas production pointed to lower rates, and as 



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Mobrell v. Brooklyn Borough Gas Co. No. 1. 5 

App. Div.] Second Department, January, 19SL 

said by Collin, J.: " The Legislature evidently intended to 
retain unto itself the power of fixing rates exceeding those fixed 
as the greatest by statutes. 1 ' (People ex rd. Municipal Gas 
Co. v. P. S. Comm., 224 N. Y. 156, 166.) Last year Mr. 
Justice Page declared: " Experience has shown that the fore* 
cast of the future was at fault; that it would have been wiser 
and more in keeping with the purposes of the act as originally 
enacted if the power of the Public Service Commissions had 
not been thus limited." (Bronx Gas & Electric Co. v. Public 
Service Comm., 190 App. Div. 13, 22*) Writing on December 
19, 1919, possibly with an eye to the approaching legislative 
session, he added: " This court, therefore, expresses the hope 
that such limitation may be removed to the end that such 
flexibility be given to the operation of the statute that the 
Commissions may be open to the determination and adjust- 
ment of conflicting claims of consumers and the companies as 
to what are reasonable rates, fair both to the companies and to 
the public, at all times and under all circumstances, as was 
originally intended." (p. 22.) Although that court took the 
view that the Commission could authorize a gas rate above the 
statute maximum, the contrary has been deeided in this 
department. (Public Service Comm. v. Brooklyn Borough Gas 
Co., 106 Misc. Rep. 549; affd., 188 App. Div. 935. See, also, 
189 App. Div. 62, 67, 74.) 

After the judgment entered on the Hughes report, the 
statute commanding the eighty-cent rate is unenforceable as to 
this particular defendant. (See Laws of 1906) chap. 125, as 
amd. by Laws of 1916, chaps. 604, 612, and. Laws of 1917, 
chap. 666.) Yet such findings and the judgment thereon did 
not destroy the statute, which still exists as a restraint upon 
the Commission. And this rests on a sound distinction. To 
hold a rate confiscatory is merely a finding that as to a par- 
ticular manufacturing plant the enforcement. of a fixed rate 
with the conditions of gas production and distribution, would 
deprive the company of property without due process of law. 
(See U. S. Const. 14th Amdt § 1; State Const, art. 1, § 6.) 
Such conditions are not merely those of operating cost and 
adequate return, but proof of such a fair and continued 
practical trial of the working of the existing rate that proves 
upon experiment its inadequacy. • 



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6 Mobrell v. Brooklyn Borough Gab Co. No. 1. 

Second Department, January, 1921. [Vol. 105. 

But there is no similar way to enlarge the delegation of this 
rate-making power. The Legislature alone can do that. 
Courts cannot supply that which the Legislature has withheld 
(Matter of Quinby v. PvbKc Service Comm., 223 N. Y. 244, 264.) 
Doubtless this was the view that led to the defendant's second 
affidavit in which it took a final stand wholly independent of 
the Commission. 

Had it been otherwise, and this advance been regularly made 
under section 72 of the Public Service Commissions Law, the 
proper remedy would be by certiorari, and not by this form of 
equity suit. But the rate of one dollar and forty cents is now 
acknowledged as an independent increase. Such advance 
deserves that full investigation that can only be had through a 
trial. We cannot say that it was any error of discretion to 
preserve the status quo, where the defendant is fully protected 
by security. Even if plaintiff sued entirely alone, he would 
have a standing to contest the exaction of rates which are unfair 
or discriminatory. (Armour Packing Co. v. Edison El. 
Illuminating Co., 115 App. Div. 51; Richman v. Consolidated 
Gas Co., 114 id. 216.) We, therefore, do not depart from the 
ordinary practice to leave the parties to a trial, rather than 
to dispose of these doubtful questions upon affidavits. 

The order, therefore, should be affirmed, with ten dollars 
costs and disbursements. 

Mills, J., concurs; Blackmab, J., reads for reversal, with 
whom Jsnks, P. J., concurs. 

Kelly, J.: 

I concur in the affirmance of the order granting injunction 
pendente lite but for reasons which are not entirely in accord 
with those expressed in the prevailing opinion. In view of 
the fact that the statutory rates fixed for defendant by the 
Legislature have been declared confiscatory and void, I think 
the power to fix a reasonable rate devolved upon the Public 
Service Commission after due hearing and investigation. I 
think this was the intention of the Legislature in such case. 
(Peopfe ex rel. Village of S. Glens Falls v. P. S. Camm., 225 
N. Y. 216.) The consumers of gas were not left solely at the 
mercy of the defendant company. (Town of North Hempstead 



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Mokrell v. Brooklyn Borough Gas Oo. No. 1. 7 

App. Div.] Second Department, January, 1W1. 

v. Pub. Serv. Corp., 193 App. Div. 224; Bronx Gas & Electric 
Co. v. Public Service Comm., 190 id. 13.) It is the expressed 
policy of the State that the charges made by these public 
utility corporations shall be subject to supervision. But 
there appears to be some confusion of opinion as to the effect 
of the decision of the Court of Appeals in People ex rel. Munic- 
ipal Gas Co. v. P. S. Comm. (224 N. Y. 156), and it is also 
said that the judgment in the case tried before Judge Hughes 
determined that the Public Service Commission was without 
power to fix rates. (Public Service Comm. v. Brooklyn Borough 
Gas Co., 189 App. Div. 62, 72.) On the other hand, the gas 
company defendant in the case at bar made its application to 
the Public Service Commission for the rates complained of 
here by permission of the Appellate Division in the First 
Department. (Brooklyn Borough Gas Co. v. Public Serv. Comm., 
190 App. Div. 901.) Out of this confused situation arises 
the controversy between the plaintiff and defendant here. 
I would doubt the correctness of the order appealed from were 
it not for the fact that the printed papers show that before 
the learned judge at Special Term the defendant gas company 
in the affidavit of its manager appeared to concede that the 
Public Service Commission had no authority to fix the rate, 
and in its points before this court there is a like concession. 
And the gas company appears to rely upon rates fixed " entirely 
independently of the permission to do so granted by the 
Commission order* On July 20, 1920, defendant, on its own 
authority, promulgated, fixed, made and established a rate," 
etc. I cannot agree that the defendant had such authority. 
' In my opinion the situation presented in the papers requires 
the affirmance of the order granting the preliminary injunction 
so that the rights of the parties may be established by prompt 
trial. 

Mills, J., concurs. 

Blackmab, J. (dissenting) : 

The complaint alleges that the Public Service Commission 
has made an order that on and after August 1, 1920, to and 
including July 31, 1921, the maximum price to be charged by 
the defendant for gas shall be one dollar and forty cents per 



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8 Morrell v. Brooklyn Borough Gab Co. No. 1. 

Second Department, January, 1«M. [Vol. 105. 

1,000 feet for gas sold and consumed, except that the defendant 
is authorized, not later than October 1, 1920, to change the 
standard of quality. As the action was brought before this 
last-mentioned date, the change of standard is not before us. 
The complaint goes on to allege in substance that the order 
of the Public Service Commission is void; that the rate pre* 
scribed by statute has been adjudged confiscatory and void 
as to defendant; that defendant is attempting to put the 
rate prescribed by the Public Service Commission in force, 
and that the rate is unreasonable and unduly compensatory 
to defendant. There is a demand for a judgment which if 
granted will affect the schedule of rates to all defendant's 
consumers. 

It is claimed that the decision of the Court of Appeals in 
People ex ret Municipal Oas Co. v. P. S. Comm. (224 N. Y. 
156) establishes as matter of law that the order of the Public 
Service Commission is void in that it authorizes a charge in 
excess of the rate fixed by statute, and may be disregarded in a 
collateral attack. That decision was rendered in a case where 
there was a statutory rate fixed and in force, and the court 
held that the power of the Public Service Commission was 
limited, by the terms of the statute conferring it, to fixing rates 
below the statutory limit. But in the case at bar it appears 
on the face of the complaint that in a suit in equity the statu- 
tory rate has been adjudged confiscatory and void as to this 
defendant. Undoubtedly, as is said in the prevailing opinion 
herein, the statute still exists; but the effect of the judgment 
is that it is void as to the defendant. Such being the case, I 
think that the decision in the Municipal Oas Company case 
does not apply. If it does, we are driven to the conclusion 
that, as to the defendant, the whole comprehensive plan of 
State control of rates through the Public Service Commission 
has broken down. It is not necessary so to hold; it is incon- 
sistent with the declared policy of the State so to hold; and in 
my opinion it is error so to hold. 

In order to hold that the Commission had power to fix the 
rate in question it is not necessary to do violence to the words 
of the statute. I proceed within its letter. The statute 
empowers the Commission to fix the maximum price of gas 
" not exceeding that fixed by statute to be charged by suck 



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Mobrell v. Brooklyn Borough Gas Co. No. 1. 9 

App. Div.] Second Department, January, 1921. 

corporation/' (Public Service Commissions Law, § 72, as.amd. 
by Laws of 1920, chap. 542.) Since the rate of eighty cants 
has been declared confiscatory and the court has adjudged 
that it is not applicable to this defendant, there is no pace 
fixed by statute to be charged by the corporation. 

But whatever we may think of the power of the Commission 
to fix a rate in excess of eighty cents, yet the Commission 
had general jurisdiction over the defendant company and over 
the subject-matter. It certainly had power to fix a rate within 
the limits of the statute. If it was not warranted in exceeding, 
eighty cents, this was an error in law and should be corrected 
by certiorari. The Public Service Commissions Law presents 
a comprehensive plan whereby all questions of reasonableness 
of charges of public service corporations where the Legislature 
has not directly acted, shall be settled by Commissioners 
whose special knowledge in this field of operation and whose 
facilities for investigation render them more fitting deposi- 
tories of that power than the courts. Thar decisions m»y be 
directly reviewed by certiorari. But they cannot be attacked 
collaterally unless entirely void as beyond the power of the 
Commission. If I am right, the Public Service Commission, 
which fixed the price in question acted within its general, 
jurisdiction, and if, contrary to my opinion, it erred as fixing 
too great a rate, that should be corrected by direct review and 
not disregarded as void. 

The subject-matter of this action concerns the charge to the 
plaintiff alone. He does not represent the public and can 
raise no question of the validity of the general schedule of 
charges. As has been seen, this power has been conferred upon 
the Public Service Commission. The allegation of his com- 
plaint is that^the rate is " unreasonable, excessive and exorbi- 
tant, and is more than sufficient to reasonably compensate 
the said defendant for its public service during a period when 
commodities necessary to comfortable existence should b? 
furnished to the consumer at as low a rate as possible." He 
prays, among other things, " That it be decreed that the rate 
of $1.40 per thousand cubic feet for iUumioating gas is, as to 
this defendant, unreasonably compensatory and void." It is 
manifest that the claim of the plaintiff is that the defendant is 
making too much money. But with this the plaintiff has no 



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10 Mobkell v. Brooklyn Borough (tas Co. No. 1. 

Second Department, January, 1921. [VoL 195. 

concern. As between the plaintiff and the defendant the only 
question is whether one dollar and forty cents per 1,000 cubic 
feet is unreasonable for the service rendered. Whether it is 
compensatory to the defendant is not the issue. That inquiry is 
pertinent only when a public service corporation claims that 
a rate fixed by statute or by the Commission is confiscatory. 
An essential element of such inquiry is whether the statute 
permits reasonable compensation to the corporation, which 
naturally involves the financial return to the company in its 
operation under the prescribed rate. Betweeen the individual 
and the company no such questions arise. (Coiling v. Kansas 
City Stock Yards Co., 183 U. S. 79; Canada Southern Railway Co. 
v. International Bridge Co., 8 App. Cas. 723.) In the Cotting case 
Mr. Justice Brewer quotes from the English case (supra, 96) , as 
follows: "It certainly appears to their Lordships that the 
principle must be, when reasonableness comes in question, 
not what profit it may be reasonable for a company to make, 
but what it is reasonable to charge to the person who is charged.'' 

Prescribing a general rate for service is a legislative and not 
a judicial act. It may be exercised by the Legislature directly 
or by an administrative body to which the power is delegated. 
In the absence of such regulation, the power to fix the charges 
is vested in the corporation itself; and although a question may 
arise as to the reasonableness of the charge, depending upon 
the service rendered, as between an individual and the cor- 
poration, such power never concerns the power of the corpora- 
tion to establish a system of rates. In the absence of such 
legislative regulation, the courts have no power to determine 
the question. (People ex rel. Linton v. B. H. R. R. Co., 172 
N. Y. 90; Honolulu R. T. Co. v. Hawaii, 211 U. S. 282; Northern 
Pacific Railroad v. Dustin, 142 id. 492; People v. N. Y., 
L. E. & W. R. R. Co., 104 N. Y. 68.) The bill of complaint, 
concerning the plaintiff's rights only, furnishes no justification 
for this suit in equity. 

If the order of the Public Service Commission is void, the 
defendant has the power to establish its own rates. The 
presumption is that they are reasonable, and a mere allegation 
of the pleadings that they are unreasonable, without evidence 
to support it, does not justify an injunction. In this record 
there is not a scintilla of evidence tending to show that the 



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Harrjty v. Stems. 11 



App. Dtv.] Second Department, January, 1021. 

rates are unreasonable, and yet the court at Special Term 
has upon this record granted an injunction and exercised 
legislative functions of prescribing a maximum rate, so sub- 
stituting its judgment for that of the Public Service Commis- 
sion and the defendant. 
I think the order should be reversed and the motion denied. 

Jenks, P. J., concurs. 

Order affirmed, with ten dollars costs and disbursements. 



James E. Harriot, Appellant, v. Henry Steers and James 
Rich Steers, Respondents. 

Second Department, January 7, 1021. 

Landlord and tenant — action for services in procuring tenant — 
complaint alleging production of tenant ready, able and willing to 
execute lease good against demurrer. 

in an action to recover for services in procuring a tenant for the defendant, 
the complaint, alleging that the plaintiff produced a tenant able, ready and 
willing to execute a lease, is good against a demurrer, since the allegation 
may be construed to mean one ready, willing and financially able to per- 
form the lease. 

Appeal by the plaintiff, James E. Harrity, from an order 
of the Supreme Court, made at the Kings Special Term and 
entered in the office of the clerk of the county of 'Kings on the 
28th day of October, 1920, granting defendants' motion for 
judgment on the pleadings. 

John J. Fitzgerald, for the appellant. 

Wikon B. Brice [Charles Thaddeus Terry with him on the 
brief], for the respondents. 

It is possible that the contract contemplated services by the 
plaintiff which were complete when he presented a tenant able, 
ready and willing to execute a lease, irrespective of his finan- 
cial ability. If so, then the complaint is good against the 
demurrer. 



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12 AssBR80N v. City of New York. 

Second Department, January, 1921. [Vol. 195 

The rule of strictness against the pleader has been greatly 
modified. (Code Civ. Proc. § 519; Kain v. Lorkin, 141 N. Y. 
144, 150; Crotty v. Brie Railroad Co., 149 App. Div. 262; 
Coafeuwft v. Lehigh Valley R. Co., 156 N. Y. 457; Troy 
Automobile Exchange v. Home Ins. Co., 221 id. 58.) I think 
that if we assume that the contract contemplated the financial 
ability of the proposed tenant to perform the lease, the plead- 
ing can be sustained against the demurrer. The word " able " 
may be construed as relative to the financial power of the 
tenant. In Richardson v. Bricker (7 Colo. 58) it is said that 
the words " when able," " of course the expression must be 
construed as referring to financial ability." " To execute " 
may be equipollent to " to perform." " F. executer; L. exseqm, 
to follow out, follow to the end, perform." (Anderson Law 
Diet. 429, n.; Rawle's Bouvier Law Diet. " Execute; " Century 
Diet. " Execute," 3 (b).) It may mean " to fulfil " or "Jto 
complete." (Den v. Young, 12 N. J. Law, 303.) Thus we 
may paraphrase fairly, one ready, willing and financially able 
to perform the lease. 

The order is reversed, with ten dollars costs and disburse- 
ments, and the motion is denied, without costs. 

Mills, Blackmab, Kelly and Jaycox, JJ., concur. 

Order reversed, with ten dollars costs and disbursements, 
and motion denied, without costs. 



Henry R. Asseiison, Appellant, v. The City op New York, 

Respondent. 

Second Department, January 7, 1921. 

Trial — motion after dismissal of complaint to open oaee and 
introduce new evidence. 

Where in an action by the assignee of a contractor to recover the amount 
unpaid on a municipal contract, an application by the plaintiff after the 
dismissal of the complaint to open the case and introduce in evidence 
the engineer's certificate was denied, and it appears that if said application 
had been granted the question as to whether or not the defendant was 
justified in retaining the whole or a part of the contract price as liquidated 



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Asserson v. City of New Yobk. 13 

App. Div.] Second Department, January, 1921. 

damages for delay in the performance of the work, the only issue litigated 
in the case, could have been determined, the judgment dismissing the 
complaint and the order denying the plaintiff's motion to set aside said 
dismissal should be reversed and a new trial granted, although the granting 
or refusing of the plaintiff's application to open the case and introduce 
new evidence rested in the discretion of the trial justice. 

Appeal by the plaintiff, Henry R. Asserson, from a judgment, 
of the Supreme Court in favor of the defendant, entered in 
the office of the clerk of the county of Kings on the 18th day 
of February, 1919, upon the dismissal of the complaint by 
direction of the court at the close of plaintiff's case, and also 
from an order entered in said clerk's office on the 11th. day of 
February, 1919, denying a motion to set aside the dismissal of 
the complaint and for a new trial made upon the minutes. 

The action was brought by the assignee of a contractor to 
recover the amount unpaid upon the contract price for work 
performed under a contract with the city. The performance of 
the work was conceded; the amount due the contractor under 
the contract price was not disputed; but the city deducted 
from the face of the contract price the sum of $4,787.50 for 
liquidated damages for delay in the performance of the work. 
The issue litigated was whether the city had the right, under 
the terms of the contract, to deduct this amount for damages 
for delay. 

Howard G. Wilson [John C. Wait with him on the brief], for 
the appellant. 

William R. Wilson [John P. O'Brien, Corporation Counsel,- 
and William B. Carswett with him on the brieQ, for the 
respondent. 

Blackmar, J.: 

The plaintiff, as his complaint was formulated, assumed the 
burden of showing that the engineer's certificate, in accordance 
with which it was alleged that the city had deducted the penalty 
for delay, proceeded upon a misconstruction of the terms of 
the contract and was in certain respects unreasonable and 
arbitrary. The plaintiff introduced much evidence tending to 
show that his assignor was entitled to be credited with certain 
delays, and in two particulars, without considering them all, he 



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14 Assbrson v. City op New York. 

Second Department, January, 1931. [Vol. 105. 

was correct. There was evidence tending to show that the 
change in the method of tamping the work, from ramming to 
flooding, and the change in the plan by eliminating the by-pass 
at Utica avenue, was, notwithstanding the letters that were 
introduced in evidence, made at the instance of the defendant, 
and that these changes caused delay in the final completion 
of the contract. As the evidence then stood, the jury might 
have found that the delay could not be charged to the con* 
tractor, and if the engineer's certificate did not give the con- 
tractor credit therefor, to that extent it did not conclude the 
plaintiff. The difficulty with the plaintiff's case, when he 
rested, was that the engineer's certificate had not been intro- 
duced in evidence. It was, therefore, impossible to determine 
whether or not the certificate was erroneous in this respect. 
When the plaintiff had rested his case,' and the motion was 
made to dismiss, and the court had announced that the motion 
was granted, the question of the absence of the engineer's 
certificate was raised and was one of the causes assigned 
by the defendant for the dismissal of the complaint. The 
plaintiff's counsel thereupon offered to introduce the certificate 
in evidence. The trial justice denied his motion on the ground 
that the complaint had already been dismissed. Although 
granting or refusing an application to open the case and 
introduce new evidence rested in the discretion of the trial 
justice, yet we think the application should have been granted. 
If it had been granted and the certificate received in evidence, 
an intelligent disposition of the case could have been made 
and it could have been determined whether or not the defend- 
ant was justified in retaining the whole or a part of the con- 
tract price as liquidated damages for delay in the performance 
of the work. 

I, therefore, recommend that the judgment and order be 
reversed and a new trial granted, with costs to abide the 
event. 

' Jenks, P. J., Rich, Kelly and Jaycox, JJ., concur. 

Judgment and order reversed and new trial granted, with 
costs to abide the event. Settle order before Mr. Justice 
Bulgkmaa. 



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Tkpuxz v. Bloomingdalb. 15 

App. Div.] Second Department, January, 1931. 

Tina Teplttz, Appellant, v. Ikvino I. Bloomingdalb and 
Others, Individually and as Copartners, Doing Business 
under the Name of Bloomingdalb Bros., Private Bankers, 
Respondents. 

Second Department, January 7, 1921. 

Banks and banking — recovery of penalty prescribed by Banking 
Law, section 114, for exaction of interest in excess of six par 
centum — judgment in prior suit for accounting not res adjudicata 
— maintenance of prior suit for accounting not an election of 
remedies. 

The penalty prescribed by section 114 of the Banking Law for the exaction 
of interest in excess of six per centum per annum can be recovered only 
in an action expressly brought for that purpose, and, therefore, a judgment 
in a prior suit for an accounting between the parties is not res adjudicata 
nor did the plaintiff by bringing such suit elect to have the issue decided 
therein. 

Appeal by the plaintiff, Tina Teplitz, from an order of the 
Supreme Court, made at the Kings Special Term and entered 
in the office of the clerk of the county of Kings on the 22d day 
of October, 1920, overruling plaintiff's demurrer to the separate 
defenses contained in defendants' answer. 

Leopold Klinger [Morris Grossman with him on the brief], 
for the appellant. 

James Leslie Pinks 9 for the respondents. 

Blackmab, J.: 

This action is brought against the defendants, who are 
private bankers, to recover the penalty prescribed by section 
114 of the Banking Law for the exaction of interest in excess 
of six per centum per annum. 

The complaint alleges that the plaintiff and the defendants 
entered into corrupt agreements in writing to enable the 
defendants to exact more than six per cent interest on certain 
advances made to the plaintiff; that the advances were made, 
and that the defendants exacted and received from the plain- 
tiff an amount of interest aggregating fifteen per cent per 
annum and amounting to the sum of $1,971.17, Judgment is 



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16 Tbplttz v. Bloomingdale. 

Second Department, January, 1921. [Vol. 196. 

demanded for twice that sum pursuant to the provisions of 
said section of the Banking Law. 

To this complaint the defendants interposed an answer 
containing affirmative defenses. The plaintiff demurred to 
the defenses as insufficient in law upon the face thereof. The 
demurrer was overruled and the plaintiff appeals. 

The first affirmative defense is that the subject of the action 
has been already adjudicated. The answer alleges that on 
the 31st of October, 1919, the plaintiff brought an action 
against the defendants for an accounting, based upon the said 
agreements and the operations of the parties thereunder; that 
a defense to said action was interposed and the case came on 
for trial which resulted in a judgment that the accounts between 
the parties showed an overpayment by the defendants to the 
plaintiff; and that the plaintiff was not entitled to any money 
judgment against the defendants. The answer further alleges 
that the said judgment is based upon a finding of fact that the 
contract aforesaid was intended to be performed and was per- 
formed by the parties substantially in accordance with its 
provisions, and that the commissions and charges, which 
under the terms of the contract the defendants were entitled 
to charge, were intended to be so charged and received as 
compensation to the defendants for doing the work provided 
for in the agreements and to cover the defendants' expenses in 
connection therewith. Then follows an allegation that the 
judgment so set forth is a prior adjudication of the cause of 
action set out in the plaintiff's complaint, and a bar thereto. 

The point of the demurrer is that the penalty provided for 
in section 114 of the Banking Law can be recovered only 
in an action expressly brought for that purpose, and in no 
other way, and that, therefore, the prior case, which settled 
the accounts between the parties, was not an adjudication 
against the plaintiff's right to recover the penalty for the 
alleged overcharge of interest which was included in the 
accounting between the parties. 

Section 1 14 of the Banking Law prohibits any bank or any pri- 
vate or individual banker from taking more than six per cent 
interest. It provides that the knowingly taking, receiving, 
reserving or charging of a larger amount shall be adjudged a 
forfeiture of the entire interest; and that if a greater rate of 



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Teputz v. Bloomingdale. 17 

App. Blv.] Second Department, January, 1001. 

interest has been paid, the person paying the same, or his 
legal representatives, may recover twice the entire amount of 
the interest if the action to recover the same is brought within 
two years from the time the excess of interest was taken. 
Then f oHiows a provision that the true intent and meaning of 
the section is to plate and continue such banks and bankers 
on an equality with the national banks under the act of 
Congress. 

The United States Supreme Court, in Barnet v. National 
Bank (96 XL S. 555), held that where a national bank brought 
an action against the parties to a bill of exchange, the 
defendants could not set up, by way of counterclaim or setoff,. 
that the bank knowingly took and was paid a greater rate of 
interest than that allowed by law. Mr. Justice Swayne in 
that case said: " The remedy given by the statute for the 
wrong is a penal suit To that the party aggrieved or his 
legal representative must resort. He can have redress in no 
other mode or form of procedure. The statute which gives 
the right prescribes the redress, and both provisions are 
alike obligatory upon the parties." 

The question came before the Court of Appeals in Caponigri 
v. AUieri (165 N. Y. 255), in which it was held that as the 
intent of the statute was to place all banks and private and 
individual bankers on a parity with the national banks, this 
decision of the United States Supreme Court was the law 
and must be followed by the Court of Appeals. 

It is obvious that an action for an accounting to determine 
the rights of the parties upon the written instrument does 
not present the same issue as an action for the penalty 
prescribed by section 114 of the Banking Law. It is true 
that the answer in this case alleges that the judgment on 
the accounting is baaed upoa a finding that the amount 
exacted by the defendants was in reality what it purported 
to be — compensation for services rendered. The contracts 
gave the defendants the right to exact this sum of money. 
The statute gives no defense to this, for section 114 of the 
Banking Law relieves banks and bankers from the liabilities 
and penalties of the usury laws. It is a matter of indifference 
in the accounting action whether the payments exacted by 
App. Div.— Vol. CXCV. 2 



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18 Teplitz v. Bloomingdale. 

Second Department, January, 1981. [Vol. 195. 

the defendants were compensation for services or a cover to 
enable the defendants to secure more than six per cent interest. 
The only remedy the law prescribes for the exaction by bankers 
of a greater rate of interest than six per cent is the penalty 
under section 114jaf the Banking Law. If this penalty could 
not be enforced as incidental to an action for an accounting, 
and this seems to be the spirit and intent of the decisions 
already referred to, these findings on this subject are irrelevant 
and cannot estop the plaintiff. If the interest is still unpaid, 
there is a remedy on the adjustment of the accounts between 
the parties (Carnegie Trust Co. v. Chapman, 163 App. Div. 
783); but the complaint contains an allegation that the 
interest has been exacted and paid to the defendants. Hie 
only remedy that the plaintiff had, according to the decisions, 
was a direct action for this double amount of interest as a 
penalty. This could not be adjudicated as incidental to an 
action in equity to settle the accounts between the parties, 
and, therefore, the decree in that action is not a bar. 

The second defense pleads practically the same matter on 
the theory that the plaintiff elected to have this issue decided 
in the accounting case. If the claim to enforce this penalty 
could not be asserted as incidental to an action for an 
accounting, the plaintiff does not and cannot elect to have 
it so decided by bringing the action in equity for an accounting. 
The courts have held in substance, I think, that the question 
of a penalty cannot be involved in such action, and, therefore, 
the judgment in that case is not res adjudicata on the question 
of this liability for the penalty, nor does the plaintiff, by 
bringing an action for an accounting, elect to have it so 
involved. 

The order should be reversed, with ten dollars costs and 
disbursements, and the demurrer sustained, with ten dollars 
costs. 

Jenks, P. J., Mills, Rich and Jaycox, JJ., concur. 

Order reversed, with ten dollars costs and disbursements, 
and demurrer sustained, with ten dollars costs. 



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WOARZ V. B06BNFSU). \9 



App. Div.] First Department, December, 1920. 



Elsie Woebz, an Infant, by Hbinrich Woerz, Her Guardian 
ad Litem, Respondent, v. Haitie Rosenfeld and Gertrude 
Mandel, Appellants, Impleaded with Augusta Isenberg, 
Defendant. 

First Department, December 3, 1920. 

Matter and servant — negligence — action by child of janitress of 
apartment house to recover for injuries received in operating 
dumbwaiter — employment without knowledge of landlord and in 
violation of Labor Law. 

The defendants, owners of an apartment house, were not liable to the plain- 
tiff, an infant, for injuries received in operating a dumbwaiter where it 
appeared that the plaintiffs mother was the janitress of the house and that 
she and her husband alone were authorized to operate the dumbwaiter 
in the basement for the purpose of removing garbage for the various 
tenants; that the defendants had no knowledge that said plaintiff was 
permitted to perform that work, and that the Labor Law forbids a 
child to work in connection with an apartment house. 

The mother in delegating her duties to the child acted outside the scope of 
her authority, and for damages arising from such unauthorized act the 
principals cannot be held liable. 

Appeal by the defendants, Hattie Rosenfeld and another, 
from a judgment of the Supreme Court in favor of the plaintiff, 
entered in the office of the clerk of the county of Bronx on 
the 6th day of December, 1919, upon the verdict of a jury 
for $7,500, and also from an order entered in said clerk's 
office on the 19th day of December, 1919, denying said 
defendants' motions to set aside the verdict and for a new 
trial in an action against defendants as owners of an apartment 
house for personal injuries alleged to have been received by 
the plaintiff on the premises aforesaid due to the negligence 
of the defendants. 

William Dike Reed, for the appellants. 

J. A. Goodwin of counsel [Leonard F. Fish with him on the 
brief], Thomas J. O'iVetH, attorney, for the respondent. 

Gbeenbaum, J.: 

Plaintiff at the time of the accident on January 7, 1916, was 
nine years, eleven months old. Her mother was the janitress of 
the apartment house in question. While using and manipulating 
a dumbwaiter in the rear of the cellar, which was a considerable 



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20 FlNKENBEEG, INC., V. CbOMPTON BUILDING CORP. 

First Department, December, 1920. [Vol. 19& 

distance removed from the living quarters of her parents, the 
plaintiff was seriously injured. The evidence is undisputed 
that the accident occurred in the performance of work in 
assisting her mother, who with her husband alone was author- 
ized to use the dumbwaiter in the cellar in order to remove 
garbage for the various tenants in the house. In other words, 
the child was injured while engaged in removing garbage cans 
for the tenants, a duty which devolved upon her parents. 
Defendants had no knowledge whatever of the fact that the 
plaintiff was permitted to perform any such work. The Labor 
Law (§§ 161, 162, as amd. by Laws of 1915, chap. 386, and 
Laws of 1911, chap. 866) forbids a child under the agp of 
fourteen years to work in connection with an apartment house. 
Besides, the mother'in delegating her duties to the child acted 
outside of the scope of her agency. For such an unauthorized 
act on the part of the mother the principals cannot be held 
liable. The facts disclosed upon the trial bring the case (dearly 
within the rule applied in Goldberg v. Borden's Condensed Milk 
Company (185 App. Div. 222; affd., 227 N. Y. 465) and Rolfe 
v. Hewitt (Id. 486). 

The judgment must be reversed and the complaint dismissed, 
with costs and disbursements. 

Clarke, P. J., Laughlin, Dowling and Merrell, JJ., 
concur. 

Judgment and order reversed, with costs. Complaint 
dismissed, with costs. 



Leo Finkenberg, Inc., Respondent, v. Crompton Building 

Corporation and Others, Defendants. 

Harris A. Rohtman, Appellant. 

First Department, December 3, 1920. 

Contempt — refusal of witness to testify before referee appointed to 
take deposition — order of reference granted before summons served. 

A witness is not guilty of contempt by refusing to testify before a referee 
appointed to take his deposition where the order of reference was granted 
and the refusal to testify took place before the complaint was verified and 
the summons served, for at the time of said refusal an action was not 
pending within the meaning of section 753 of the Judiciary Law. 



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Fbkbnbsbg, ftro., v. Cbompton Building Corp. 21 

App. Div.] First Department, Deoembe*, 19001 

Appeal by Harris A. Rohtman from an order of the 
Supreme Court, made at the New York Special Term and 
entered in the office of the clerk of the county of New York 
on the 14th day of May, 1900, granting the plaintiff's motion 
that Harris A. Rohtman be adjudged in contempt of court 
and fining him the sum of $303.80, and also from an order 
entered in said cferik's office on the 22d day of March, 1020, 
denying the appellant's motion to vacate an order for the 
appointment of a referee to take his deposition to be used 
upon a motion. 

Elijah N. Zoline, of counsel [Henry t W. Fried, attorney], 
for the appellant. 

Isaac N. Jacobson of counsel [Samuel I. Goldberg, attorney], 
for the respondent. 

Greenbaum, J.: 

On February 16, 1620, an ex parte order was signed for 
the appointment of a Teferee to take the deposition of the 
appellant as a witness to be used in aa action which had not 
then been commenced by the respondent against the Crompton 
Building Corporation and another, and on the same day a 
subpcena was issued to and served upon the appellant to appear 
before the referee on February 18, 1920, on which day the 
hearing was adjourned bo February 21, 1920. The order of 
reference was based upon the affidavit of the attorney of the 
plaintiff, from which it appears that the summons and com* 
plaint had not been served up to February 16, 1920. The 
complaint was not verified until February 24, 1920. As mat- 
ter of fact there was no action pending on February 21, 1920. 
When the appellant attended before the referee on February 21, 
1920, he objected to being sworn upon the ground that there 
was no pending action and, therefore, no power in the court 
to compel him to testify. On February 25, 1920, he moved 
at Special Term to vacate the order of reference upon the same 
grounds as urged before the referee, but that motion was 
denied. The learned court in a brief memorandum based its 
denial upon Wallace v. Baring (2 App. Div. 501) and Allen v. 
Mayer (73 N. Y. 1). 

In Wallace v. Baring (supra) the record on appeal shows 



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22 FnntENBBBG, Inc., v. Crompton Building Corp. 

First Department, December, 1920. [Vol 19& 

that as matter of fact the referee was appointed a considerable 
time after the action had been commenced and the summons 
served on one of the defendants. 

Alien v. Mayer (supra) was an action in winch a warrant 
of attachment had been granted. The motion to vacate the 
attachment was based upon the ground that the Court of 
Common Fleas of the City of New York had not acquired 
jurisdiction to grant the warrant, "for the reason that the 
summons had not been served, the defendant not being a 
resident of the city." Said the court: "This would be a 
good point but for the provisions of the Code (Kerr v. Mount, 
28 N. Y. 659). The Code, section 227,* which authorizes the 
issuing of an attachment and provides that ' for the purposes of 
this section an action shall be deemed commenced when the 
summons is issued, provided, however, that personal service 
of such summons shall be made, or publication thereof 
commenced within thirty days.' " 

The court thus upheld the jurisdiction of the court upon 
the ground that in that case an action had been commenced 
by the issuance of the summons under the Code provision 
above quoted and treated the action as a pending one within 
the contemplation of law. 

The case at bar is not concerned with an application for 
an attachment. There is nothing stated in section 885 of 
the Code of Civil Procedure under which the order of reference 
was ostensibly granted, which would indicate that such an 
order may be made in other than a pending action. More- 
over, section 753 of the Judiciary Law, which re-enacted 
section 14 of the Code of Civil Procedure, relating to contempt 
proceedings, provides: "A court of record has power to 
punish, by fine and imprisonment, or either, a neglect or 
violation of duty, or other misconduct, by which a right or 
remedy of a party to a civil action or special proceeding, 
pending in the court, may be defeated, impaired, impeded, or 
prejudiced, in either of the following cases," among which is 
the refusal of a witness to be sworn. (Subd. 5.) This, how- 
ever, was not an action pending in this court when the order t>f 

♦ See Code Proo. § 227, as amd. by Laws of 1866, chap. 824, and Ls*a 
of 1875, ohap. 28.— [Rep. 



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Matter of Hazelwood Oil Co. 23 

App. Div.] Fourth Department, December, 1990. 

reference was signed nor when the alleged disobedience of the 
witness before the referee took place. 

Under the circumstances the order appealed from, granting 
plaintiff's motion that the witness be adjudged guilty of 
contempt of court, must be reversed, with ten dollars costs 
and disbursements, and the motion denied, with ten dollars 
costs; and .the order denying defendant's motion to vacate the 
order appointing a referee reversed, with ten dollars costs and 
disbursements, and the motion granted, with ten dollars costs. 

Clarke, P. J., Lattghlin, Dowung and Merrell, JJ., 
concur. 

Order granting plaintiff's motion reversed, with ten dollars 
costs and disbursements, and motion denied, with ten dollars 
costs; order denying defendant's motion reversed, with ten 
dollars costs and disbursements, and motion granted, with 
ten dollars costs. 



In the Matter of the Application of Hazelwood Oil Company, 
Appellant, for a Writ of Certiorari to Review the Assessment 
of Its Property in the Town of Allegany, New York. 

ASSESSOBS OF THE TOWN OF ALLEGANY, NEW YOBK, 

Respondents. 

Fourth Department, December 22, 1920. 

Taxation — oil wells leased by foreign corporation are real property 
for purposes of taxation. 

Oil wells on leased land are assessable as real property against the lessee, a 
foreign corporation, and when the Legislature provided by section 39 of 
the General Construction Law that oil wells on leased land should be 
deemed personal property for all purposes except taxation, it was intended 
that for such purposes they should be regarded as real property. 

Section 39 of the General Construction Law was not repealed or superseded 
by chapter 726 of the Laws of 1917, applicable to foreign corporations, 
since that statute has application only to machinery used for trade or 
manufacture situate in a building, structure or superstructure. 

Appeal by the relator, Hazelwood Oil Company, from an 
order of the Supreme Court, made at the Erie Special Term 
and entered in the office of the clerk of the county of 



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24 Matter of Hazelwood Oil Co. 

Fourth Department, December, 1920. [Vol. 195. 

Cattaraugus on the 22d day of September, 1920, confirming 
the report of the referee in certiorari proceedings to review 
the action of the assessors of the town of Allegany, and also 
from a final judgment entered in said clerk's office on the 
same day, confirming the assessments and dismissing the 
petitions for the writs of certiorari. 

Allen J. Hastings, for the appellant. 

W. C. Overton and CreigkUm S. Andrews [Creighton S. 
Andrews of counsel], for the respondents. 

Hubbs, J.: 

The relator, the Hazelwood Oil Company, is a foreign 
corporation engaged in the oil and gas business in this State. 
It holds an oil lease of a farm of 268 acres in the town of 
Allegany, Cattaraugus county, upon which it has forty-nine 
oil wells. The lease provides that it is " for the sole and 
only purposes of mining and excavating for petroleum, coal, 
rock or carbon oil, or other valuable mineral or volatile 
substances." The lease provides that the lessor shall " fully 
use and enjoy the said premises for the purposes of tillage, 
except such part as shall be necessary for said mining purposes/' 
the lessee to have " the right to remove any machinery or 
fixtures placed on said premises" by it. The lease was 
extended and enlarged by an instrument under seal which 
extended the said lease for a period " as long as oil shall be 
found in paying quantities on the leased premises." 

The assessors of said town assessed said oil wells as real 
estate. The relator brought these proceedings to review such 
assessments. In written objections filed with the assessors 
of said town and in the petitions herein the relator objected 
to the assessments " upon the ground that said assessment is 
wholly illegal and erroneous in that it is in violation of the 
provisions of Chapter 726 of the Laws of 1917 of the State 
of New York." 

The position of the relator is that it is not subject to any 
tax on real property in said town, because its property is 
personal property wholly exempt from local taxation for the 
reason that the relator is a foreign corporation and as ' such 
liable to a tax under chapter 726 of the Laws of 1917, known 
as the Emerson Act. No objection is made to the form or 



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Matter op Haeelwood Oil Oo. 25 

App. Div.] Fourth Department, December, 1990. 

amount of the assessment. It is not claimed that the assess- 
ment should be reduced, or that any items should be stricken 
out, but it is urged that it is wholly void. 

The only question which we have to determine is whether 
oil wells situate on the lands leased can be legally assessed 
by the local assessors as real property against the lessee, a 
foreign corporation. 

Prior to the enactment of chapter 372 of the Laws of 1883 
there was great confusion in the cases upon the question 
of the status of oil well properties, (Buck v. Cleveland, 
143 App. Div. 874; Wagner v. MaUory, 41 id. 126; affd., 
160 N. Y. 501.) Chapter 372 of the Laws of 1883 was 
undoubtedly enacted to settle the law. It read as follows: 
"All oil wells and all fixtures connected therewith, situate on 
lands leased for oil purposes and oil interests, and rights held 
under and by virtue of any lease or contract or other right 
or license to operate for or produce petroleum oil, shall be 
deemed personal property for all purposes except taxation, 
but nothing herein contained shall affect the laws now in 
force relating to taxation." This law was re-enacted in the 
same form as section 39 of the General Construction Law, 
except that the following clause was left out in the re-enact* 
ment: "but nothing herein contained shall affect the laws 
now in force relating to taxation." Since the enactment of 
chapter 372 of the Laws of 1883, oil well properties have 
been treated as personal property for all purposes except for 
the purposes of taxation, and also except in cases where they 
have been classed as real property by statute for some specific 
purpose, as in section 2 of the Lien Law (as amd. by Laws of 
1916, chap. 507). 

It was said in the case of Wagner v, Matfory (169 N. Y. 501), 
in referring to chapter 372 of the Laws of 1883: " The Legis- 
lature had the power to determine and define the character of 
property and specif y whether it should be regarded in the future 
as real or personal." We think that when the Legislature 
provided by statute that oil wells on leased land should be 
deemed personal property for all purposes except taxation, it 
intended that for purposes of taxation they should be regarded 
as real property. That was the construction placed upon that 
statute in actual practice, and it seems to have been the uni- 



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26 Matter of Hazelwood Oil Oo. 

Fourth Department, December, 1090. [Vol. 106. 

form practice to tax such properties as real property. We 
think that such practice was proper. 

In 1917 the Legislature passed an act taxing certain 
corporations for the privilege of doing business in this State, 
and said act exempted the personal property of such corpora- 
tions from local taxation. (Tax Law, art. 9-A, §§ 208-219-1, 
added by Laws of 1917, chap. 726, and Laws of 1918, chap. 
271, as amd.) Section 219-1 of the Tax Law (added by Laws 
of 1918, chap. 271, as amd. by Laws of 1919, chap. 628) reads 
as follows: " The term ' personal property/ for the purposes of 
the exemption from assessment and taxation thereon locally as 
granted by section two hundred and nineteen-] of this chap- 
ter/ shall include any movable machinery and equipment used 
for trade or manufacture and not essential for the support of 
the building, structure or superstructure, and removable with- 
out material injury thereto. The term ' personal property/ as 
used in such section, shall not include boilers, ventilating 
apparatus, elevators, plumbing, heating, lighting and power 
generating apparatus, shafting other than counter-shafting, 
equipment for the distribution of heat, light, power, gases 
and liquids, nor any equipment consisting of structures or 
erections to the operation of which machinery is not essential." 

It is urged by the appellant that even if oil well property was 
properly assessed prior to the enactment of chapter 726 of the 
Laws of 1917 as real property, that statute, and the amend- 
ments thereto, which define personal property for the purposes of 
that act and exempt it from assessment for local tax purposes 
by the assessors, supersedes the general statute (Gen. Const. 
Law, § 39) and nullifies judicial decisions as to the character of 
such property for the purpose of taxation. We are unable 
to agree with such conclusion. We see nothing in that section 
to include oil wells and machinery. It refers to machinery 
used for trade or manufacture situate in a building, structure 
or superstructure. In People ex rel. Citizens 7 Gas Light Co. 
v. Board of Assessors, etc. (39 N. Y. 81) it was held that under 
a statute which affected things erected upon or affixed to 
land, mains of a gas company laid underground were not 
included. Similarly, this statute, which refers to things in 

* Amd. by Laws of 1918, chap. 271, and Laws of 1919, chap. 138. Since 
amd. by Laws of 1920, chaps. 113, 640.— [Rep. 



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Matter of Lawlbr. 27 

App. Div.] Fourth Department, December, 1980. 

a building, structure or superstructure, must not be extended 
beyond the limit of the class of property which the Legislature 
meant to include. While the statute in question might 
change the status of things of the class specified; it cannot 
be extended to include things of a different class. 

The conclusion reached makes it unnecessary to discuss 
separately the cases which were reviewed together. The 
judgment and order should be affirmed, with costs. 

All concur. 

Judgment and order affirmed, with costs. 



In the Matter of Proving the Last Will and Testament and 
Codicil Thereto of Edward Lawler, Deceased. 

First Trust and Deposit Company, Respondent; Julia 
Lawler Lambe and Others, Appellants. 

Fourth Department, December 22, 1920. 

Wills — probate — Jury trial as to due execution — error to take ease 
from Jury where evidence conflicting as to execution — execution 
of codicil does not Tivify defectively exeouted will. 

On proceedings to probate a will in which certain issues were directed to be 
tried in the Surrogate's Court before a jury, it was error for the court 
to refuse to submit to the jury the question whether the will was exeouted 
in compliance with section 21 of the Decedent Estate Law and to hold as 
a matter of law that the will had been properly executed, where the evi- 
dence introduced as to the execution of the will was conflicting and raised 
a clear question of fact. 

The faet that the codicil, which was properly executed, referred to, the will 
and that the will was annexed thereto did not make the defectively exeouted 
will a part of the codicil or authorize its probate. 

Krusb, P. J., dissents, with memorandum. 

Appeal by the contestants, Julia Lawler Lambe and others, 
from a decree of the Surrogate's Court of the county of 
Onondaga, entered in the office of said surrogate on the 26th 
day of November, 1919, admitting to probate the alleged 
last will and testament of Edward Lawler, deceased, and the 
codicil thereto, after a trial before a jury, and also from an 
order entered in said surrogate's office on the 29th day of 



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28 Matter op Lawler. 

. Fourth Department, December, 1930. [Vol. Ifl5. 

November, 1919, denying contestants' motion to set aside 
the verdict and for a new trial made upon the minutes. 

John T. Delaney [John P. Hennessey of counsel], for the 
appellant Julia Lawler Lambe. 

Tracy, Chapman & Tracy, for the appellants Daniel Lawler 
and Patrick Lawler. 

Joseph B. Murphy [Edward W. Cregg of counsel], for the 
respondent. 

Hubbs, J.: 

The contestants filed objections to the probate of the alleged 
last will and testament of Edward Lawler,* deceased, also 
to the codicil thereto, and demanded a jury trial. An order 
was made directing that the issues raised by the objections 
filed be tried in the Surrogate's Court before a jury. 

One of the objections filed by the contestants to the probate 
of said alleged last will and testament was the objection that 
it was not subscribed, published and attested as required by 
the statutes of the State. Section 21 of the Decedent Estate 
Law requires that every last will and testament shall be 
subscribed by the testator at the aid, in the presence of 
each of the attesting witnesses, or shall be acknowledged by 
him to have been so made to each of the attesting witnesses, 
and that at such time he shall declare the instrument so 
subscribed to be his last will and testament. The section 
also provides that there shall be at least two attesting witnesses 
and that each shall sign his name as a witness at the end of 
the will at the request of the testator. 

One of the two attesting witnesses to the will in question 
died before the trial. The other was called by the proponent 
as a witness upon the trial and testified that Edward Lawler, 
deceased, was not present and did not sign said alleged will 
in the presence of the witnesses, and did not declare and 
publish it in the presence of the witnesses. The evidence 
of the witness was positive. He testified that Mr. Lawler 
was not in the room when he signed the paper as a witness; 
that he did not see him sign his name; that he did ndt know 
Mr. Lawler 's signature; that he had never seen the signature 
at the end of the will before, and that Mr. Lawler did not sign 



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Matter of Lawleb. 29 

App. D1t.] Fourth Department, December, 1990. 

the alleged will in his presence and in the presence of Mr. Rice, 
whose name appears as the other witness and who was dead. 
The witness testified that the only paper he saw was one sheet 
upon which was the attestation clause. 

Other evidence was offered which tended to establish that 
the will was executed in accordance with the provisions of 
the statute, and that question was fairly one for the jury. 
The learned surrogate, however, held, as a matter of law, 
that the will had been properly executed with all the formalities 
required by the statute, and refused to submit that question 
to the jury. Counsel for the contestants duly objected and 
excepted to the court's ruling. The conflicting evidence upon 
the question of the execution of the alleged will raised a clear 
question of fact which should have been determined by the 
jury and not by the court as a question of law. (McDonald v. 
Metropolitan St. R. Co., 167 N. Y. 68; Hagan v. Sone, 174 id. 
317.) 

It is urged by the respondent that the decree should be 
sustained even though such ruling was erroneous, for the 
reason, as stated in respondent's brief, that " a duly executed 
codicil will take up and vivify a defectively executed will." 

The codicil in question was dated and executed over six 
months after the will. It is not questioned but what it was 
executed with all the formalities required by statute, and 
it is contended that the proof of the due execution of the 
codicil authorized the admission to probate of both the will 
and the codicil. There are expressions in cases which sustain 
such contention, but, in view of the clear and unequivocal 
position of the Court of Appeals, it does not seem necessary 
or advisable to discuss those cases in detail. 

In the case of Booth v. Baptist Chwch (126 N. Y. 215) 
Judge Finch, writing for the unanimous court, said: " It is 
unquestionably the law of this State that an unattested paper 
which is of a testamentary nature cannot be taken as a 
part of the will even though referred to by that instrument." 
The principle was reaffirmed in Matter of Fowles (222 N. Y. 
222, 232). (See, also, Cook v. White, 43 App. Div. 388; 
affd., 167 N. Y. 588; Matter qf Andrews, 43 App. Div. 394; 
affd., 162 N. Y. 1.) In so far as the respondent's position on 
this question is concerned, the question stands as though the 



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30 Matter of Lawler. 

Fourth Department, December, 1920. [Vol. 195. 

alleged will had been attested by only one witness, and the 
respondent is in the position of contending that a properly 
executed codicil which refers to a will attested by only one 
witness constitutes a republication of such will and, by 
reference, incorporates such defectively executed will into the 
validly executed codicil, and entitles both to probate. That 
was the situation in Matter of Emmons (110 App. Div. 701) 
where it was held that an invalid will was not given validity 
by a subsequent codicil referring thereto, although the codicil 
was properly executed. 

A will which was properly executed but has been rendered 
inoperative by law, or a will executed while the testator was 
of unsound mind or under restraint, may be revived and 
validated by the execution of a codicil. So a validly executed 
will which has been revoked by a subsequently executed will 
may be revived and republished by the execution of a codicil 
referring to such will. {Brawn v. Clark, 77 N. Y. 369; Cook v. 
While, supra; Matter of Campbell, 170 N. Y. 84.) It will 
be noted, however, that in each of those cases the will -was 
a valid will when executed and that its validity had been 
lost or suspended, and all that the codicil did was to revive 
and give life and vitality to the will which was executed in 
accordance with the terms of the statute. A codicil can give 
validity to a will only where the will was executed in accordance 
with the provisions of the statute and has, for some reason, 
become inoperative. The will in question did not fall within 
such class, and the due execution of the codicil did not entitle 
the will to probate. 

It is suggested that the will in question became in fact a 
part of the codicil because it was physically attached to it 
when it was executed, and that when the codicil was executed, 
published and witnessed, the will was again executed, published 
and witnessed, and that the will and the codicil together 
constituted a new will, duly signed and witnessed at the end, 
as required by the statute. The trouble with that suggestion 
is that there is no evidence in the record to sustain it. 
Assuming that a testator could use an old will, in making a 
new one, by attaching to the back of the old will a new codicil, 
signing at the end of the codicil, and acknowledging the 
papers attached together to be his last will, that was not done 



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Matter of Lawler. 31 

App. Div.] Fourth Department, December, 1820. 

in this case. The evidence is clear that the only paper declared 
in this case, and the only paper intended to be executed 
and witnessed was the codicil, and the fact that the will 
to which the codicil referred was physicially present was a 
mere incident. It was not referred to in any way and the 
testator and the witnesses did not understand that an attempt 
was being made to execute a new will consisting of the codicil 
and the old will to which it referred. The attestation clause 
to the codicil recites, in the usual form, that the testator 
subscribed his name to the instrument and declared the same 
to be a codicil to his last will. Under the facts in this case 
the will referred to in the codicil cannot be treated with the 
codicil as a new will. The decree should be reversed and a 
new trial ordered, with costs to the appellants to abide the 
event. 

All concur, except Krttse, P. J., who dissents in a 
memorandum. 

Kruse, P. J. (dissenting): 

I agree that if it was necessary to prove the original execu- 
tion of the will it was error to hold as a matter of law that 
the evidence conclusively established such execution. But 
according to the testimony of Mr. Cowie, which is undisputed, 
he read the codicil to the testator, then gave the codicil and 
the original will to the stenographer and told her to fasten 
them together, which she did; thereupon the testator signed 
his name to the codicil and declared the codicil to be his 
last will and testament. The codicil in terms expressly 
reaffirms and ratifies all of the provisions of the original will 
save as modified by the codicil, and the original will so 
attached to the codicil precedes it. Thus, physically, the 
original will and the codicil became one document and was 
subscribed by the testator at the end. I think this establishes 
the execution of the will and codicil as the will of the testator, 
without proving the original execution of the will as a separate 
instrument. 

I, therefore, vote to affirm. 

Decree reversed and new trial granted, with costs to 
appellants to abide event. 



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32 Matter of Gratton. 

Third Department, January, 1921. [Vol. 195. 

In the Matter of the Probate of the Last Will and Testament 
of John Gratton, Late of the City of Plattsburgh, Clinton 
County, New York, Deceased. 

Delia Gratton and Others, Appellants; Mary Atotte and 
Josephine LaMonde, Respondents. 

Third Department, January 5, 1921. 

Wills — probate — when testimony of proponents contradicting 
evidence in behalf of contestants not incompetent under section 
829 of Code of Civil Procedure — purpose of said section. 

Where in an action for the probate of a will, an attorney who acted as 
counsel in a separation action between the testator and a woman with 
whom he had lived after his first wife had deserted him, testified in behalf 
of the contestants that at a meeting with reference to said action several 
years before the execution of the will at which others were present one 
or the other of the testator's daughters, beneficiaries under his will, made 
a request that her father make a will in behalf of herself and the other 
daughter, and that the father refused to make such a will at that time, 
and such evidence was offered for the purpose of showing a disinclination 
on the part of the father to make a will in behalf of said daughters and 
to show an importuning on their part, testimony by one of the daughters 
that neither she nor her sister made such a request, was not incompetent 
under section 829 of the Code of Civil Prooedure. 

The purpose of said section is to protect the estate in the hands of the 
executors or administrators; it prevents persons interested in the event 
of an action or special proceeding upon the merits from testifying to 
conversations with the deceased, but it has no application to the present 
situation. 

Appeal by the contestants, Delia .Gratton and others, from 
an order of the Supreme Court, made at the Clinton Trial 
Term and entered in the office of the clerk of the county of 
Clinton on the 9th day of June, 1919, denying contestants' 
motion to set aside the verdict of a jury, and also from a decree 
of the Surrogate's Court of the county of Clinton, entered 
in said surrogate's office on the 3d day of July, 1919, admitting 
the will of John Gratton, deceased, to probate. 

Arthur S. Hogue and John H. Booth, for the appellants. 
C. /. Vert, for the respondents. 



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Matter of Gbatton. 33 

App. Div.] Third Department, January, 1881. 

WbODWAKD, J.: 

Although this case has been argued with great elaboration, 
there is, upon the merits, very little to be said against the 
verdict of the jury and the resulting decree. There is no 
substantial evidence tending to establish undue influence, as 
that term is understood in the law; little, if any, evidence 
of incompetency on the part of the testator, and no substantial 
controversy as to the due execution of the instrument pro- 
pounded as the last will and testament of John Gratton. 
The contestants have had all the advantages growing out of 
a jury trial; no error is pointed out in the charge of the court 
which merits consideration, and, unless the testimony of one 
of the parties was subject to the limitations provided by 
section 829 of the Code of Civil Procedure, the order and 
decree should be affirmed. 

John Gratton, on the 6th day of May, 1918, made and 
executed in due form of law his last will and testament. He 
died on the first day of June following, and soon thereafter 
this will was offered for probate. A citation returnable on 
the 15th day of July, 1918, was regularly issued, and upon 
that day objections to the probate of the will were filed. 
On the nineteenth day of August the surrogate of Clinton 
county made an order transferring the trial to the Supreme 
Court, directing that six specific questions of fact be tried 
and passed upon by the jury. The case came on for trial 
on the 17th day of December, 1918, resulting in answers to 
each of the questions propounded in favor of the validity of 
the will. Thereupon the surrogate decreed that the will be 
admitted to probate; and the contestants appeal from the 
order denying a motion to set aside the verdict, and from the 
decree admitting the will to probate. 

John Gratton appears to have been married early in life. 
His wife, after bearing him four children, deserted him and 
went west, taking her only son, and an unborn daughter, with 
her. Two daughters were left to the care of John Gratton, 
who subsequently went through the form of marrying a 
woman known as Virginia, with whom he lived for many 
years, though it was known to both parties to this alleged 
marriage that the first wife was living and undivorced. 
App. Div.— Vol. CXCV. 3 



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34 Matter of Gbatton. 

Third Department, January, 1981. [Vol. 105. 

The will now before the court provided for giving to his wife 
$200 annually, and " all the rest and residue of my property 
I give and bequeath to my beloved daughters Mary Ayotte 
and Josephine LaMonde, share and share alike." These are 
the daughters of the first wife who were left behind; and they 
are likewise made the executricee of the will. It will be observed 
that this will is not upon its face an unreasonable or unnatural 
disposition of the property of this testator under the facts 
as stated, and where a jury has answered all the questions 
adversely to the contestants it is not the province of this 
court to be astute to discover a method of defeating the 
lawful purposes of a testator, though we might not approve 
his marital conduct. 

Virginia had brought two several actions for separation 
from the testator, one in 1906 and another in 1914. The 
first action was settled on a consideration satisfactory to the 
parties and they resided together for several years afterward. 
The second action was tried, resulting in a judgment against 
the contentions of Virginia. Upon the trial of the issues 
submitted by the surrogate, and which are here under review, 
much testimony was adduced as to the family affairs, and 
in the course of the investigation John H. Booth, who acted 
as counsel in the litigation between John Gratton and Virginia, 
was called upon to testify as to a meeting which occurred in 
the office of Judge Healey back in 1914, at which Judge Healey, 
Mrs. Ayotte, Mrs. LaMonde, John Gratton and the witness 
were present. This witness testified that at this meeting one 
or the other of the daughters who I are the beneficiaries 
under this will made a request that her father make a will in 
behalf of herself and the other daughter, and that the father 
refused to make such a will at that time. This was apparently 
offered for the purpose of showing a disinclination on the 
part of the father to make a will in behalf of the present 
beneficiaries, and to show an importuning on their part. But 
the surrounding circumstances indicate that this could have 
but very remote connection with the making of the present 
will in 1918. They were present in consultation over the then 
pending litigation between the father and Virginia. The 
question under consideration was the first wife and the 
possibility of her making trouble in the event of the father's 



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Matter of Geatton. 35 

App. DiT.] Third Department, January, 1991. 

dying, and the suggestion of the will grew out of this conference. 
It was in nowise a secret or privileged communication; it 
was made in the presence of counsel representing adverse 
parties and of a third person, besides the two daughters. 
After this witness had testified to this alleged request and 
refusal, Josephine LaMonde, one of the daughters involved, 
was called to the stand and after testifying to her relationship 
and her presence at the conference she was asked: " I call 
your attention particularly to the statement [of Mr. Booth] 
that you or your sister Mary Ayotte asked your father at 
that time that he make his will and leave you girls the prop- 
erty. Will you state whether you made any such request in 
substance or did your sister Mary Ayotte in your presence? " 

This was objected to as incompetent under section 829 of 
the Code. The court overruled the objection, with an excep- 
tion to the contestants, but added: " I do not allow it as a 
personal transaction between the testator and the witness. 
It is received only for its effect upon the testimony of Judge 
Booth." The witness answered: " I never asked my father," 
and on motion of contestants' counsel this answer was struck 
out. 

The question was asked again in a slightly different form, 
the same objection and ruling were made, and the witness 
answered that she did not, and that she did not hear her 
sister make such a request. 

Upon cross-examination this witness admitted that some 
such talk might have been had at this conference, so that 
the denial amounted simply to her declaration that neither 
she nor her sister asked her father at this semi-public conference 
to make a will in their behalf, though admitting that some 
such talk was had at the time by some one, and from other 
things appearing in the case it would seem that Mr. Booth 
was the one to suggest such action. It all related to a con- 
ference back in 1914; it was limited by the court to contra- 
diction of testimony offered and received in behalf of the 
contestants, and it is difficult to understand how the testimony, 
assuming it to have been entirely incompetent, could have 
had any appreciable bearing upon the issues involved in the 
probate of this will. 

But the purpose of section 829 of the Code of Civil Pro- 



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36 Matter op Gratton. 



Third Department, January, 1921. [Vol. 195. 

cedure is not to nullify the provisions of section 828 that 
"a person shall not be excluded or excused' from being a 
witness, by reason of his or her interest in the event of an 
action or special proceeding." This is the rule, and section 
829 is a modification; it is a case where it is " otherwise 
specially prescribed in this title," and we are not to extend 
its language beyond its strict letter. It is only upon the trial 
of an action " or the hearing upon the merits of a special 
proceeding " that " a party or person interested in the event " 
is not to " be examined as a witness in his own behalf " against 
" the executor, administrator or survivor of a deceased person 
* * * concerning a personal transaction or communication 
between the witness and the deceased person or lunatic, 
except where * * * the testimony of the lunatic or 
deceased person is given in evidence concerning the same 
transaction or communication." Here Mr. Booth had testi- 
fied that either one or both of the daughters had "said in 
substance that the father ought to will the property to them, 
and asked him to do it. He said he would not do it." This 
is not technically the testimony of the deceased person in 
evidence; it is the testimony of Mr. Booth as to what the 
deceased person said; it purports to give both sides of a 
conversation which occurred in the presence of several persons, 
and the contestants having had the benefit of the alleged 
conversation it would be a very remarkable condition of the 
law if the person who was alleged to have had that conversa- 
tion could not dispute the testimony of the living witness 
who gave it. The purpose of section 829 of the Code of 
Civil Procedure is to protect the estate in the hands of 
the executors or administrators; it prevents persons interested 
in the event of an action or a special proceeding upon the 
merits from testifying to conversations with the deceased, 
but it has no place in the situation here presented. Mrs. 
Ayotte and Mrs. LaMonde were nominated in the will as 
executrices, but they had no standing as such officials until 
the will was probated and letters issued. They were not 
before the court in this proceeding as executors; they were 
there as proponents of the last will and testament of their 
father. Their testimony could not have been " against the 
executor, administrator or survivor of a deceased person;" 



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Booth Co. v. Adams Express Co. 37 

App. Div.] Third Department, January, 1921. 

they were not testifying against the executors, but against 
the contestants. If the contestants succeeded there would 
be no will; there would be no executors; they were not testi- 
fying to impose a burden upon the estate, but in support 
of the will made by their father, and at the particular time 
complained of they were merely contradicting the testimony 
of Mr. Booth, and we think the latter is not protected by 
anything in section 829 of the Code of Civil Procedure. 
The order and decree should be affirmed. 

All concur, John M. Kellogg, P. J., in result upon the 
ground that the alleged error in the admission of evidence 
was harmless and could not affect the result. 

Order and decree affirmed, with costs. 



C. F. Booth Company, Respondent, v. Adams Express 
Company, Appellant. 

Third Department, January 5, 1921. 
Appeal — when Appellate Division will not review facts. 

The fact that upon the argument of an appeal it was conceded that findings 
had not been served, and that the exceptions might be filed at that time 
and treated as duly filed, did not perfect the record so as to permit of a 
review of the facts, there being no certificate of the court either that the 
record contained the necessary pajws required by section 1853 of the 
Code of Civil Procedure or all of the evidence necessary to the determina- 
tion of the questions presented, nor any order of the court directing the 
filing of the printed case as required by said section. 

Where there is no certificate of the court that the case contains all of the 
evidence necessary to the determination of the question presented on 
appeal, the Appellate Division is bound to presume that sufficient evidence 
was offered on behalf of the plaintiff to warrant the decision and it will 
not review the facts. 

Appeal by the defendant, Adams Express Company, from 
a judgment of the Supreme Court in favor of the plaintiff, 
entered in the office of the clerk of the county of Chenango 
on the 11th day of November, 1919, upon the decision of the 
court rendered after a trial at the Chenango Trial and Special 
Term, a jury having been waived. 



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38 Booth Co. v. Adams Express Co. 



Third Department, January, 1031. [Vol. 195. 

Nelson P. Bonney, for the appellant. 

Edward H. O'Connor [H. C. Stratum of counsel], for the 
respondent. 

Woodward, J.: 

The complaint sets forth a cause of action for negligence 
on the part of the defendant in the performance of its obliga- 
tions as a common carrier in the transportation of certain 
merchandise, consisting of massage cream, in that such mer- 
chandise was permitted to freeze while in the custody of the 
defendant, thus destroying its commercial value. The case 
was tried before the court, without a jury, resulting in a 
judgment in favor of the plaintiff for the full amount of the 
claim. The defendant appeals from the judgment, and urges 
that the goods for which the plaintiff seeks to recover were 
not the property of the plaintiff, but belonged to the various 
consignees; that plaintiff has no property rights in the goods 
and cannot recover. 

The difficulty with the appellant's case is that the court has 
found, as a matter of fact, that " at the time of the commence- 
ment of this action the title to the goods was in the plaintiff, ,, 
it appearing that they had been rejected by the customers, 
such rejection being accepted by the plaintiff, and as a conclu- 
sion of law that the plaintiff was the proper party to bring the 
action; and the record does not permit us to go into the 
inquiry suggested. Upon the argument of this case it was 
conceded that the findings had not been served and that the 
exceptions might be filed at that time and treated as duly 
filed; but this did not perfect the record to permit of a review 
of the facts, for there is ho certificate of the court, either that 
the record contains the necessary papers required by section 
1353 of the Code of Civil Procedure, or all of the evidence 
necessary to the determination of the questions presented, 
nor is there any order of the court directing the filing of the 
printed case, as required by section 1353 of the Code of Civil 
Procedure. The case here presented is in identically the same 
condition as was the record in Gregory v. Clark (53 App. Div. 
74, 75) and is very similar to that in the case of Miller v. 
Farmers & Merchants 9 State Bank (85 App. Div. 175, 178), 
and the judgment should be affirmed for the reasons therein 



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Skeels v. Paul Smith's Hotel Co. 39 

apf. Biv.] Third Department, January, 1921. 

suggested. Where there is no certificate of the court that the 
case contains all of the evidence necessary to the determina- 
tion of the question presented on appeal this court is bound to 
presume that sufficient evidence was offered on behalf of the 
plaintiff to warrant the decision, and it will not review the 
facts. (Mackintosh y. Kimball, 101 App. Div. 494, 498; 
Meislahn v. Irving National Bank, 62 id. 231, 234; Kiasam v. 
Kissam, 21 id. 142, 145; Uhlef elder v. City of Mount Vernon, 
76 id. 349, 351; Young v. Barker-Ranwm, 139 id. 194, 195, and 
authorities there cited.) 
The judgment appealed from should be affirmed. 

Judgment unanimously affirmed, with costs. 



Before State Industrial Commission, Respondent. 

In the Matter of the Claim of Elizabeth Skeels, Respondent, 
for Compensation under the Workmen's Compensation Law, 
on Behalf of Herself and Infant Children for the Death of 
Her Husband, Mybon J. Skeels, v. Paul Smith's Hotel 
Company, Employer, Appellant, Impleaded with State 
Insurance Fund, Insurance Carrier, Defendant. 

Third Department, January 5, 1921. 

Workmen' » Compensation Law — evidence insufficient to establish 
contract of employment. 

In a proceeding before the State Industrial Commission for the death of 
claimant's husband who was killed while at work in catting timber, held, 
on all the evidence, that he was not an employee of the alleged employer, 
a corporation, at the time of his death. 

The jurisdictional fact of a contract of employment must be established 
by due process of law; by evidence which would be required to establish 
any other contractual relation. A mere scintilla of evidence is not 
sufficient. 

Appeal by the defendant, Paul Smith's Hotel Company, 
from an award of the State Industrial Commission, entered in 
the office of said Commission on the 17th day of October, 
1919. 



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40 Skbbis v. Paul Smith's Hotel Co. 

Third Department, January, 1921. [Vol. 105. 

Francis Barry Cantwett, for the appellant. 

Charles D. Newton, Attorney+General [E. C. Aiken, Deputy 
Attorney-General, of counsel], for the respondents. 

Woodward, J. : 

Myron J. Skeels met his death while at work in cutting 
timber for wood pulp upon premises owned by the Paul Smith's 
Hotel Company, in the town of Brighton, Franklin county, on 
the 14th day of November, 1918, and the question necessary 
to the disposition of this appeal is whether he was an employee 
of that corporation at the time of his death. 

On the 20th day of November, 1918, the claimant wrote a 
letter to the State Industrial Commission in which she says: 
" Enclosed find notice of death of my husband who was killed 
working in the lumber woods for Paul Amell." On the 
twenty-ninth day of November of the same year the claimant 
verified her formal claim, in which she stated that she made 
claim for compensation for " the death of Myron J. Skeels, 
who died on the 14th day of November, 1918, in the employ 
of Paul Amell, of Lake Clear, N. Y." On the thirtieth day 
of November of the same year the claimant again wrote the 
State Industrial Commission saying that " my husband was 
cutting wood by the cord as all the men are for Mr. Amell, and 
did not have a contract to cut any amount, and he worked for 
Mr. Amell by the day at different times. Mr. Amell is getting 
the wood out for Paul Smith's Hotel Co.," etc. On the fourth of 
December following Mr. Amell, writing to the State Industrial 
Commission in reference to this claim, says: " I did not have 
a written contract with Skeels, but had a verbal contract at a 
certain price per cord and his partners William Buckley and 
William Ryan have since Skeels' death continued work by the 
cord," and the letter closes with a declaration that " I was in 
no sense his employer, as he was an independent contractor." 
On the twenty-eighth of December of the same year the Paul 
Smith's Hotel Company wrote the State Industrial Commission 
saying that " Paul Amell is a pulpwood contractor, that has a 
verbal contract with this company to deliver pulpwood loaded 
on the cars at a certain price per cord, so that he is not on our 
payroll. * * * Amell has no authority to hire help for 



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Skeeus v. Paul Smith's Hotel Co. 41 

App. Div.j Third Department, January, 1881. 

this company and Skeels had no authority to hire help for 
Amell." A letter from Amell on the 9th day of January, 1919, 
continues his denial of responsibility. Buckley and Ryan 
make a joint affidavit to the effect that Skeels was engaged with 
them in a joint undertaking to cut pulpwood by the cord for 
Paul Amell at the Paul Smith tract, but make no suggestion 
that the Paul Smith's Hotel Company had any connection with 
the matter. Alexander Liberty in an affidavit sets forth that 
he was a bookkeeper for Paul Amell, and that the deeedent, 
Skeels, with Buckley and Ryan, was engaged in cutting this 
pulpwood by the cord for Amell, and Paul Amell makes an 
affidavit to the same effect on the 13th day of January, 1919, 
and on the same day Paul Smith, Jr., makes an affidavit in 
corroboration of those previously mentioned. Subsequently 
Paul Smith (whether junior does not appear) appeared before 
one of the deputy commissioners and testified to a like state of 
facts. At this same hearing the claimant was examined by 
the deputy commissioner, and in answer to leading questions 
said she did not know anything about the contractual relations 
between her husband and Paul Smith, or between her husband 
and Paul Amell; that she only knew that he worked at Mr. 
Smith's and Paul Amell was over Mm; that she always thought 
her husband worked for Paul Smith, and that she always 
considered that he " was one of his employees; " that she 
always thought his wages came horn. Paul Smith. 

Here we find the first subtle suggestion of Smith's relation 
to the death of Skeels. It is to be noted, however, that it 
makes no mention of the Paul Smith's Hotel Company, which 
is a domestic corporation having a legal entity entirely distinct 
and apart from the individuals who compose it, and the record 
shows two Paul Smiths, one designated as " Paul Smith, Jr*," 
and the other merely as Paul Smith, and it must be obvious 
that the record up to this time does not disclose any contractual 
relations whatever between the- Paul Smith's Hotel Company 
and the decedent, and without such a relationship there is no 
foundation for the operation of the Workmen's Compensation 
Law. (Workmen's Compensation Law, § 2, clause 1, as amd. 
by Laws of 1917, chap. 705; Id. § 3, subds. 3, 4, 5, 6, 7, as amd. 
by Laws of 1917, chap. 705; Id. § 10; Palmer v. Van Santoovrd, 
153 N. Y. 612, 614; People ex rel. Gilmour v. Hyde, 89 id. 11, 17.) 



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42 Skeem v. Paul Smiths Hotel Co. 

Third Department, January, 1821. [Vol. 195. 

There can be no employer or employee or employment, as used 
in the Workmen's Compensation Law, without an act of hiring 
(People ex ret GUmour v. Hyde, supra), for these words have a 
distinct and well-defined meaning in the jurisprudence of the 
State, and must be deemed to have the same meaning when 
used in the statutes. (Perkins v. Smith, 116 N. Y. 441.) In 
Kackel v. Serviss (180 App. Div. 54), followed in Tsangournos 
v. Smith (183 id. 751), this court held that the jurisdictional 
fact of a contract of employment must be established by due 
process of law; by evidence which would be required to 
establish any other contractual relation, and that in the absence 
of such evidence no foundation was laid for the operation of 
the Workmen's Compensation Law. The determination of 
the State Industrial Commission that Paul Smith's Hotel 
Company should pay the award, without evidence to support 
it, is not due process of law. The action of the Commission 
in making such a ruling, where there is no evidence of the 
existence of a contract of hiring, is an attempted exercise of an 
arbitrary power, not reaching the character of legislation. It 
is mere confiscation, and it is fundamental that every inhabit- 
ant of this State is entitled to retain his property until it has 
been judicially determined that some one else has a better 
right to it. Where the claim is that confiscation of property 
will result from the action of a commission in fixing rates, or 
otherwise, "the State must provide a fair opportunity for 
submitting that issue to a judicial tribunal for determination 
upon its own independent judgment as to both the law and 
facts " (Ohio Valley Water Co. v. Ben Avon Borough, 40 Sup. 
Ct. Repr. 527, 528, and authorities there cited), and unless we 
find in this record some evidence of a probative character that 
the decedent was an employee of the Paul Smith's Hotel Com- 
pany the award cannot stand. Our attention is not called to 
any such evidence. The learned Attorney-General, in his 
brief, tells us that " the connection of the Paul Smith Hotel 
Company with the job was by the fact that it had a superin- 
tendent by the name of Owens who went around the woods to 
see that the wood was cut and cleaned up properly, and also 
to measure the wood so that money could be advanced upon 
it and to see that they cut in the proper locality and what trees 
to cut. This man was called the superintendent in the woods. 



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Skeels v. Paul Smith's Hotel Co. 43 

App. Div.] Third Deportment, January, 1091. 

Mr. Amell says that he was there to measure the wood and 
give instructions what to do and how to do the work. Mr. 
Amell was himself a poor man, not able to pay any award, and 
in view of the fact that his principal, Paul Smith, advised him 
not to take out any insurance we think that the defendant 
should be held to pay the award." 

No evidence is produced that Paul Smith was the principal 
of Mr. Amell; the uncontradicted testimony is that Mr. Amell 
had a verbal contract for cutting the pulpwood timber on the 
hotel property tract at a given price per cord, and that Owens 
was the man who had charge of measuring the wood as it was 
cut, and of seeing to it generally that Amell performed the 
conditions of the contract. There is not a particle of evidence 
that Owens had any control over Skeels, or that Amell had any 
control over the manner in which Skeels performed his work, 
except to confine him to a particular piece of land. Skeels was, 
by all the evidence, engaged in a joint enterprise with two other 
men in the cutting of pulpwood under a subcontract with 
Amell, and the fact that he entered into an agreement which 
did not entitle him to compensation from Amell, or that Amell 
was too poor to pay compensation, does not warrant holding 
the Paul Smith's Hotel Company for the amount of this award. 
The only foundation on which an award can lawfully be made 
against the Paul Smith's Hotel Company is evidence that 
Skeels was an employee of that corporation, and there is no 
evidence of this. The testimony of the claimant that she 
always supposed her husband worked for Mr. Smith clearly 
does not reach the dignity of a scintilla of evidence that the 
Paul Smith's Hotel Company employed the decedent, and a 
mere scintilla of evidence is not sufficient upon a jurisdictional 
question, such as is here involved. (Matter of Case, 214 N. Y. 
199, 203, and authorities there cited.) The Legislature itself 
could not determine that a man was an employee, for the 
purpose of taking property from the alleged employer, where 
no such relation in fact existed — certainly not after the acci- 
dent had occurred. " The true interpretation of these con- 
stitutional phrases is," say the court in Wynehamer v. People 
(13 N. Y. 378, 393), dealing with " law of the land " and " due 
process of law," " that where rights are acquired by the 
citizen under the existing law, there is no power in any branch 



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44 Skeels v. Paul Smith's Hotel Co. 

Third Department, January, 1921. [Vol. 196. 

of the government to take them away; but where they are 
held contrary to the existing law, or are forfeited by its viola- 
tion, then they may be taken from him — not by an act of 
the Legislature, but in the due administration of the law 
itself, before the judicial tribunals of the State. The cause or 
occasion for depriving the citizen of his supposed rights must 
be found in the law. as it is, or, at least, it cannot be created by 
a legislative act which aims at their destruction. Where rights 
of property are admitted to exist, the Legislature cannot say 
they shall exist no longer; nor will it make any difference, 
although a process and a tribunal are appointed to execute the 
sentence." The right to contract; the right to determine 
whether one shall be an employer or an employee, is an essential 
element of that liberty guaranteed by our constitutional 
system, and there is no power in the Legislature to determine, 
or to authorize any tribunal to determine, that that relation 
exists where the parties themselves have not expressly or 
impliedly consented to occupy that relationship. In the case 
here under consideration no notice was given to the Paul 
Smith's Hotel Company that it was to be charged with the 
payment of an award; no one made any such claim against it. 
The fact that Paul Smith appeared as a witness does not give 
the court or tribunal jurisdiction of the Paul Smith's Hotel 
Company, and the rule is well settled that " no judgment of 
"a court* is due process of law, if rendered without jurisdiction 
in the court, or without notice to the party." (Scott v. 
McNeal, 154 U. S. 34, 46.) There was no jurisdiction in the 
Workmen's Compensation Law except of accidents . to 
employees, and while the State Industrial Commission prob- 
ably has power to determine the question of employment 
primarily it cannot be permitted to charge an individual or 
corporation with an award where the undisputed evidence 
showB that there was no contract of employment. 

The award appealed from should be reversed and the claim 
dismissed. 

All ooncur. 

Award appealed from reversed and claim dismissed. 



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Keller v. Rbis <St Donovan, Ina 45 

App. Div.] Tliird Department, January, lfl&L 



Before State Industrial Commission, Respondent. 

In the Matter of the Claim of Adam C. Keller, Respondent, 
for Compensation under the Workmen's Compensation 
Law, v. Reis & Donovan, Inc., Employer and The 
Travelers Insurance Company, Insurance Carrier, 
Appellants. 

Third Department, January 5, 1921. 

Workmen's Compensation Law — injury on public highway i» city 
in adjoining State while proceeding to place of work — injury 
not arising out of and in course of employment. 

A workman who slipped upon a curb in one of the public highways in a city 
in an adjoining State, at about twenty minutes past eight o'clock while pro* 
oeeding to his place of work, and was injured, did not sustain an accidental 
personal injury arising out of and in the course of his employment within 
the meaning of the Workmen's Compensation Law, although there was an 
agreement between a labor organization and employers providing that a 
workman employed outside the city district who does not live near his 
work must be at the limit of the city district nearest to the place ot work 
as near eight o'clock as is possible, and shall proceed to the place by the 
shortest route. 

Kiley, J., and John M. Kellogg, P. J., dissent, with memorandum. > 

Appeal by the defendants, Reis & Donovan, Inc., and 
another, from an award of the State Industrial Commission, 
entered in the office of said Commission on the 21st day of 
November, 1919, and also from an award of said Commission 
entered in the office thereof on the 10th day of May, 1920. 

Benjamin C. Loder [E. C. Sherwood and William B. Davis of 
counsel], for the appellants. 

Charles D. Newton, Attorney-General [E. C. Aiken, Deputy 
Attorney-General, of counsel; Bernard L. Shientag, counsel to 
the State Industrial Commission, and Peter M. Daly of counsel], 
for the respondents. 

Woodward, J. : 

The claimant, on the 12th day of September, 1919, slipped 
upon a curb in one of the public highways in Newark, N. «L, 
and sustained a fracture of the lower extremity of the shaft of 



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46 Keller v. Reis & Donovan, Inc. 

Third Department, January, 1021. [VoL 105. 

the fibula of the left leg, for which the State Industrial Com- 
mission has made an award covering the period from the time 
of the accident to the 10th of November, 1919, on which date 
the disability terminated. Ordinarily, of course, an employee 
is not entitled to compensation for injuries occurring upon the 
public highways, to which we are all exposed in common, but 
the claimant lived in the borough of The Bronx in the city of 
New York; his employer, engaged as a general electrical 
contractor, had offices at 8 West Fortieth street, New York, 
and at the time had a contract for the doing of some work in 
a building situated in Newark, N. J., and the accident occurred 
at about twenty minutes past eight o'clock in the morning, 
after the beginning of work hours, under the provisions of an 
agreement between a labor organization and employers, 
among them the defendant here. The important question is, 
of course, whether there was " an accidental personal injury 
sustained by the employee arising out of and in the course of 
his employment " (Workmen's Compensation Law, § 10), and 
this involves the question whether an agreement regulating 
hours and conditions of labor entered into between a labor 
organization and employers can operate to give a compensable 
case where none would exist without it. 

The agreement here under consideration provided that " the 
hours of labor shall be eight hours per day, to be performed 
within the hours of 8 a. m. and 5 p. m.," and that " all work- 
men shall be paid for the time they are actually at work in the 
Borough of Manhattan, Borough of The Bronx, and at all other 
points within a radius of ten (10) miles from City Hall." It was 
■then provided that " a workman employed outside the city dis- 
trict," as above defined, " who does not reside near his place of 
work, must be at the limit of the city district nearest to the place 
of work as near to 8 a. m. as is possible, and shall proceed to 
the place by the shortest route," and while there is no specific 
provision for paying for the time thus lost to the employer, 
it is a fair inference that this was the purpose of the agreement; 
that it was intended that an eight-hour day should prevail for 
all workmen within the scope of the agreement, those going 
outside to be paid for the time lost in traveling beyond the 
city territory. But this agreement did not attempt to provide 
that the employer should become an insurer of the workman 



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Keller v. Keis & Donovan, Inc. 47 

App. Div.] Third Department, January, lflftl. 

against the risks incident to travel upon the public highways. 
It did not undertake to give to employees outside of the city 
district a greater degree of protection than those who worked 
within the district; it merely fixed an eight-hour day and 
provided that those within a certain district must perform 
eight hours of labor, while those without such district, and 
subject to the agreement, must be at the district line at the 
hour fixed for service and must proceed by the nearest route 
to the place of employment. In other words, the eight-hour 
day of labor was not required of those who went outside the 
city district; they satisfied the terms of the agreement if they 
were at the boundary line nearest to the place of employment 
and proceeded by the most direct route to the place of employ- 
ment, and the spirit of the agreement is manifest in the further 
provision that " where a workman is employed outside the 
city district, and resides near such work, he shall report and 
quit at the regular time, and shall not be entitled to any car 
fare." The whole purpose of the agreement was to equalise 
conditions of labor; to provide that the man going outside of 
the city district, with the exception above noted, should not 
be obliged to give more time to the employment than those 
within the district. The eight-hour day standard was to be 
subject to such a reduction of the time at labor as was neces- 
sary to reach the place beyond the nearest line of the city 
district. It was not an agreement that the employment should 
begin at eight o'clock outside of the city, subjecting tht 
employer to the burden of risks in no wise connected with his 
particular enterprise, but a concession from the eight hours 
prescribed for those within the city district. He was to get as 
near to the place of employment within the city district as 
possible at eight o'clock in the morning, and he was not to be 
penalized for the time that it took him to go from that point 
to his place of labor; his wages were to be those provided for 
the eight-hour day, and while " all workmen shall be paid for 
the time they are actually at work " in the city district, out- 
side they were to be paid for the eight hours, regardless of the 
time actually worked, provided they complied with the con- 
ditions named. If the employer did not like to lose this time 
it was provided that he might direct the employee to board 
at the place where the work is located, but in that event the 



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48 Keller v. Reis <Sb Donovan, Inc. 

Third Department, January, 1921. [Vol. 195. 

employer was to pay the board bill, when, of course, he would 
be entitled to the full eight hours' work. 

From this analysis it is evident that the contracting parties 
did not contemplate increasing the liabilities of the employer 
by commencing the employment before the claimant had 
reached the place of labor. There was no intention of making 
better conditions for those who went outside the city district 
than those who worked within the district; it merely protected 
the man going outside from the hardship of getting up early 
enough in the morning to reach his employment by eight 
o'clock. He was doing what his fellow-laborers did in sub- 
stance when he reached the city district boundary at the time 
they were called upon to go to work within that district, and 
beyond that he was allowed from his labor sufficient time to 
reaqh the place of employment without a sacrifice of any 
part of his day's wages. The agreement obviously sought an 
equalizing of the conditions of labor for the members of its 
union, with no purpose to change the provisions of the Work- 
men's Compensation Law in its relation to such members, and 
clearly no employer, acting freely, would enter into an agree- 
ment to become the insurer of his employees upon their way 
to work, for the very spirit of the statute is that it is to com- 
pensate for the accidents growing out of the employment, 
and which are properly chargeable against the industry as a 
part of the cost of production. The claimant may, for aught 
that we know, have a cause of action against the city of Newark 
for negligence in the care of its highways, but we are fully 
persuaded he has no claim against the enterprise conducted 
by his employer because of an accident happening to him upon 
the public highways of Newark, while he was doing no service 
for the employer. 

The provision of the statute is that " compensation pro- 
vided for in this chapter shall be payable for injuries sus- 
tained or death incurred by employees engaged in the f ollowing 
hazardous employments " (Workmen's Compensation Law, 
§ 2, as amd. by Laws of 1917, chap. 705), and clearly the 
claimant was not "engaged" in a " hazardous employment" 
when he was walking along one of the highways of Newark, 
in the State of New Jersey, and doing nothing to advance 
the interests of his employer; that is not one of "thefol- 



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Kkllkb v. Reis & Donovan, Inc. 49 

App. DiT.] Third Department, January, 1921. 

lowing hazardous employments " mentioned in the statute. 
The act, to quote from a Massachusetts case, cited in 
Matter of Alport v. Pwoers (223 N. Y. 97, 101), "does not 
afford compensation for injuries or misfortunes, which merely 
are contemporaneous or coincident with the employment, 
or collateral to it. * * * The personal injury must be 
the result of the employment and flow from it as the inducing 
proximate cause. * * * The direct connection between 
the personal injury as a result and the employment as its 
proximate cause must be proved by facts before the right to 
compensation springs into being." Nothing that the claimant 
was doing had any relation whatever to the employment; he 
was doing nothing for the employer. He was serving his own 
purpose of getting to the place of employment, under an 
agreement which protected him against loss of time, but 
which in nowise advanced the well-being of the employer, and 
the employment to which he was proceeding could in no pos- 
sible sense be said to be a proximate cause of the accident. 
" Employment/' says subdivision 5 of section 3 of the statute 
(as amd. by Laws of 1917, chap. 705), " includes employment 
only in a trade, business or occupation carried on by the 
employer for pecuniary gain, or in connection therewith," and 
" ' employee ' means a person engaged in one of the occupa- 
tions enumerated in section two or who is in the service of an 
employer whose principal business is that of carrying on or 
conducting a hazardous employment upon the premises or at 
the plant, or in the course of his employment away from the 
plant of his employer." (§ 3, subd. 4, as amd. by Laws of 
1917, chap. 705.) The accident must be " in the course of his 
employment," " only in a trade, business or occupation carried 
on by the employer; " and the facts in this case do not bring 
the claimant within these definitions prescribed by the statute. 
" When an employee is injured through some act of his own, 
not an incident to his employment, and not authorized or 
induced by his employer in connection with his employment, 
the injury does not arise out of and in the course of his 
employment within the meaning of subdivision 7, section 3 of 
the Workmen's Compensation Law" (Matter of Gifford v. 
Patterson, Inc., 222 N. Y. 4, 8); and we are clear that the 
App. Div.— Vol. CXCV. 4 



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50 Keller v. Reis & Donovan, Inc. 

Third Department, January, 1921. [VoL 195. 

State Industrial Commission is in error in making the award 
here under review. 
The award should be reversed, and the claim dismissed. 

All concur, except Kiley, J., dissenting with a memoran- 
dum, in which John M. Kellogg, P. J., concurs. 

Kiley, J. (dissenting) : 

I am of the opinion that this award should be sustained. 
Subdivision 4 of section 3 of the Workmen's Compensation 
Law (as amd. by Laws of 1917, chap. 705) says: " ' Employee ' 
means a person engaged in one of the occupations enumerated 
in section two or who is in the service of an employer whose 
principal business is that of carrying on or conducting a 
hazardous employment upon the premises or at the plant, or 
in the course of his employment away from the plant of his 
employer," etc. The employer was an electrical contractor and 
some of its work was electrical wiring. The claimant resided 
in the city of New York, and the principal place of business 
of his employer was also in New York city. On September 
12, 1919, and previous thereto, the employer was doing a job 
of electrical wiring in Newark, N. J. The claimant had 
worked for this employer several years and was in his employ 
on the day aforesaid. It appears from the record that at the 
time of this accident an agreement was in existence and opera- 
tive, entered into between the Electrical Contractors' Associa- 
tion and the inside electrical workers of Greater New York, to 
which the employer herein, and the claimant employee (he 
being an inside electrical worker), were parties. It provides 
as follows: 

" 5. The hours of labor shall be eight hours per day, to be 
performed within the hours of 8 a. m. and 5 p. m. on every 
day, excepting Saturday, Sunday and on legal holidays. The 
hours on Saturdays shall be from 8 a. m. until 12 noon." 

" 12. All workmen shall be paid for the time they are 
actually at work in the Borough of Manhattan, Borough of 
The Bronx, and at all other points within a radius of ten (10) 
miles from City Hall, which territory shall be known as the 
city district, and shall receive all necessary fare exceeding ten 
cents. 

" 13. A workman employed outside the city district, who 



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Keller v. Reis & Donovan, Inc. 51 

App. Div.] Third Department, January, 1091. 

does not reside near his place of work, must be at the limit of 
the city district nearest to the place of work as near to 8 a. m. 
as is possible, and shall proceed to the place by the shortest 
route. In returning he shall arrive at the aforesaid point as 
near to 5 p. m. as possible, but if directed by his employer to 
board at the place where the work is located, the necessary 
expenses for the board shall be paid by the employer. 

" 14. Where a workman is employed outside the city dis- 
trict, and resides near such work, he shall report and quit at 
the regular time, and shall not be entitled to any car fare." 

This is important only as showing the contract between 
claimant and his employer. It shows that his day and his pay 
commenced at eight o'clock a. m. and at the New York city 
line; from the city line to Newark, N. J., claimant was on the 
employer's time and transported to his work or to the station, 
within three or four blocks of his work, at his employer's 
expense. If the railroad or trolley station was at the works 
or place where claimant was performing service under his 
contract, then, under Matter of Littler v. FvMer Co. (223 N. Y. 
369), there would not be any question as to his right to com- 
pensation. While the evidence does not show, outside of the 
rules above quoted, from these it is inferable that his employer 
was paying claimant's car fare as far as the road ran toward 
the place where he was to render service. We have this 
situation, the time of injury was eight-twenty a. m.; while he 
was on the employer's time and just after he left the conveyance 
on his way to the place of actual service he slipped and fell 
while he was completing a small fraction of his journey on foot, 
made necessary because the conveyance did not go quite to his 
destination. I think he was in the course of his employment 
under section 3, subdivision 4, of the Workmen's Compensa- 
tion Law, and that the accident arose out of his employment. 
(See §§ 10, 3, subd. 7, as amd. by Laws of 1917, chap. 705.) 
It is too narrow a construction of the law to hold that this little 
hiatus of three or four blocks took the case out of the statute, 
where, by force of circumstances, he had to walk to his work. 

I favor affirmance. 

John M. Kellogg, P. J., concurs. 
Award reversed and claim dismissed. 



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52 Matter op Balducci. 

Third Department, January, 1921. [Vol. 195. 

In the Matter of the Application of Ralph Baldtjcci, Land- 
lord, Respondent, for the Removal from Certain Premises 
of Herman Rakov, Tenant. 

Lena Rakov, Appellant. 
Third Department, January 5, 1921. 

Landlord and tenant — summary proceedings — lack of Jurisdiction 
because proceedings are not authorised cannot be raised for first 
time on appeal — proceedings to dispossess tenant for non-pay* 
ment of rent and failure to perform covenants of lease — notice to 
tenant — violations of lease before plaintiff acquired property — 
knowledge by plaintiff of violation — right of court to deny dis- 
possession and fix compensation where violations not willful. 

The objection that the court did not acquire jurisdiction of summary pro- 
ceedings brought to recover the possession of real property for non-pay- 
ment of rent and violations of the covenants of the lease, because the pro- 
ceedings were not authorized under section 2231 of the Code of Civil 
Procedure, cannot be raised for the first time on appeal. 

The proceedings having been brought to recover possession of real property 
and not to recover the rent, after default in the payment of rent and 
failure to perform the covenants of the lease, and after the service of the 
three days' notice, they were maintainable under section 2231 of the Code 
of Civil Procedure, and the fact that the landlord gave the tenant twenty- 
one days' notice should not vitiate the notice. 

A landlord and tenant may agree as to what shall constitute a breach of the 
covenants of the lease, and a breach of the covenants is available to the 
landlord in summary proceedings instituted under said section. 

The fact that some of the acts of commission and omission which constitute 
a breach of the lease were committed before the plaintiff acquired the 
property, and the further fact that the plaintiff knew of such changes in 
the electrical equipment of the building but did not know the effect 
thereof until notified by the board of fire underwriters, does not con- 
stitute a defense to the proceeding. Especially is this true since the tenant 
neglected and refused to comply with the request of the landlord to put 
the electrical equipment and other things affecting the fire risk in the 
condition they were before the changes were made. 

The proceeding being one for the recovery of possession of real property the 
court does not have the power to refuse to grant a warrant of dispossession 
on the ground that the violations of the lease were not willful and that, 
therefore, compensatory damages only ought to be awarded. 

Appeal by Lena Rakov from an order of the County Court 
of the county of Madison, entered in the office of the clerk 
of said county on the 16th day of April, 19203 awarding posses- 



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Matter op Balducol 53 

App. Div.] Third Department, January, 1931. 

sion of certain premises in the village of Canastota, N* Y., to 
the respondent. 

Nash, Britcher & Eckel [George B. Russell and John F. Nash 
of counsel], for the appellant. 

Campbell & Woolsey [R. D. Woolsey of counsel], for the 
respondent. 

Kiley, J.: 

On the 19th day of September, 1914, William Sherwood 
and John Sherwood leased to Herman Rakov " The Theater, 
known as the Sherwood Theater, including the auditorium, 
stage, dressing rooms and passageway leading from the stage 
to the dressing rooms, located in the new Sherwood Block on the 
west side of Peterboro Street in the village of Canastota, New 
York, together with the use, in common with other tenants of 
the block, of the lobby leading from Peterboro Street to the 
auditorium; also the use, in common with other tenants of the 
block, of the stairway and hall leading from Peterboro Street 
to the box of said Theater on the second floor." The term under 
said lease was to commence and did commence September 21, 
1914 ; it was for a period of five years, to end September 20, 1919. 
The rent reserved in the lease is $100 a month for occupation 
and $10 a month additional " from the time the fire is started 
in. the heating plant in the fall of each year until it is allowed to 
go out in the spring of each year during the term of this lease." 
It was stipulated that at the commencement of the term " all 
electric fixtures and electric bulbs are in perfect condition." 
It is further provided in said lease: "And further agrees to 
save the parties of the first part free, clear and harmless from 
any and all damages, actions or causes of action that may 
result from any cause by reason of the conducting of the said 
theater during the term of this lease." Again, it is further 
provided as follows: " It is further understood and agreed, that 
should the party of the secpnd part at any time fail, neglect or 
refuse to perform the covenants herein specified for him to per- 
form, or either of them or fail to pay his rent or any part 
thereof, at the time it shall become due and payable, the parties 
of the first part at their option may immediately terminate this 
lease upon three days' notice and remove said party of the second 



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54 Matter of Balducci. 

Third Department, January, 1981. [VoL 105. 

part and all persons in his employ from the said theater, together 
with all equipment or other property belonging to him." 
Added to the lease and executed by the parties to the lease, 
at the same time, is a separate agreement which provides that 
the lease may be renewed for an additional period of five years 
on the same terms and conditions, by giving the lessors notice 
of such intention six months before the termination of the 
lease. On the 19th day of September, 1914, by an instrument 
in writing, the lessors consented that said lease be assigned to 
Lena Rakov, reserving and not waiving any of their rights 
under said lease. On October 23, 1917, the respondent pur- 
chased of the Sherwoods the premises in question, including 
the theater, and succeeded to all of their rights under said lease. 
Herman Rakov or his wife, Lena Rakov, aforesaid, was in 
possession under the lease. On January 17, 1919, Herman 
Rakov served notice upon respondent of his intention to renew 
the lease for an additional period of five years under the terms 
and conditions of the then existing lease. On March 15, 1919, 
the appellantiand Herman Rakov served a similar notice upon 
respondent. At the time Herman Rakov first entered into 
possession of the theater under his lease, the electrical wiring, 
equipment, operator's booth for moving pictures, their and 
its location and arrangements had been inspected by an elec- 
trical inspector for the Underwriters Association of the State 
of New York, and had been passed and found up to the stand- 
ard, so that the usual premium rates prevailing in that com- 
munity were applicable to this property. The evidence 
shows that previous to the 1st day of November, 1919, 
the fixtures and wiring had been changed by the tenant; 
that uninsulated flexible cords of varying lengths were put in 
and used; that precautions laid down by the Underwriters 
Association to prevent fire and the spreading thereof to other 
parts of the building were disregarded; that the top or roof 
of the operator's bdbth, in which the apparatus for projecting 
pictures upon the screen or canvas, made of and completely 
inclosed in asbestos, so that any fire originating therein is 
confined to the booth, had been removed (this after respond- 
ent had acquired the property); that no sand in pails or 
other receptacles was kept in the booth as required. Thirtean 
dollars rent due for maintaining fires, in accordance with said 



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Matter of Balducol 55 

App. Div.] Third Department, January, 1921. 

lease, during the fall of 1919 and before the 1st of November, 
1919, was not paid and payment by the tenant was refused. 
Respondent did not know of these omissions and commissions, 
except the non-payment of rent, until he was notified that the 
rate on his insurance had been raised so that it was costing 
him ninety cents a hundred in advance over what it was before 
the above conditions were created or allowed to exist. As 
soon as respondent learned of them he asked the tenant 
to replace the electrical fixtures, wiring and apparatus in the 
same condition as they were before the changes were made. 
This the tenant neglected and refused to do, except in a few 
minor details. The condition of the booth which caused fifty 
cents a hundred dollars of the raise in premium on insurance 
was not corrected at the time of the trial. On the 1st day 
of November, 1919, the landlord, as petitioner, and respondent 
herein, served or caused to be served upon the tenant the 
following notice: 

" Please take notice that whereas, you are occupying and 
operating the Theater or Moving Picture Show in the Sher- 
wood block on the west side of Peterboro Street in the Village 
of Canastota, N. Y., in pursuance of the terms of the lease 
made and executed on the 19th day of September, 1914, 
between William Sherwood and John Sherwood and yourself, 
and 

" Whereas, said lease contains a provision giving the owner 
thereof the right to terminate the lease in case you fail, neglect 
or refuse to perform the covenants contained in said contract, 
and 

" Whereas, you have heretofore failed, neglected and refused 
and still fail to perform said covenants, the undersigned, in 
pursuance of the option given him according to the terms of 
said lease, hereby cancels and terminates the same and hereby 
gives you notice that you must remove from said premises on 
or before the 21st day of November, 1919. 

[Signed] " RALPH BALDUCCI. 
" Dated Canastota, N. Y., November 1st, 1919. 
" To Herman Rakov." 

There is no assignment in the record of this lease from 
Herman to Lena Rakov, but there is a stipulation that the 



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56 Matter op Balducci. 

Third Department, January, 1921. [Vol. 195. 

proceedings may be had and maintained the same as if she 
had been named instead of Herman Rakov. The tenant did 
not vacate the premises, and on November 22, 1919, the 
respondent made and filed his petition for the order of removal 
of the tenant under chapter 17, title 2, of the Code of Civil 
Procedure as authorized by section 2231 of that Code. The 
tenant filed and served an answer; upon the issue thereby raised 
a trial was had resulting in the order appealed from to this 
court. Appellant's first contention is that the court did not 
acquire jurisdiction because the proceedings were not author- 
ized under section 2231 of the Code of Civil Procedure. Pass- 
ing that for the moment, let us see if he is in position to 
raise the question on this appeal. The stipulation settling the 
case provides that in addition to the printed record there shall 
be furnished for the use of the court upon this appeal the 
affidavits and papers used by appellant upon his motion for a 
new trial, after decision, before the County Court; that has 
been done; nowhere in the record is this question raised. The 
trial proceeded upon the theory that the petition and answer 
iftade the issue and it was so tried; neither by answer nor 
motion before or during the trial, or at the close of the evidence, 
was the question raised, as to jurisdiction, which is urged 
here. When petitioner rested his case counsel for appellant 
made the following motion: " I move for a dismissal of this 
proceeding, upon the ground the plaintiff has failed to sustain 
the burden of proof upon him to show there is any violation of 
this lease, or any violation of landlord and tenant upon the 
statute." At the close of the evidence appellant's counsel 
said: " I renew my motion for a dismissal of the complaint." 
Both motions were denied. These were the only motions 
made where it can be claimed that the question was raised; 
it was not raised by these motions. On the motion for a new 
trial the affidavits admit that it was not raised; it is tried, in 
these affidavits, to have it appear that it was faintly or 
remotely, perhaps obscurely would be the better term, raised. 
Such was not the fact, so that we have the case tried on the 
theory that there was no such question to be raised, and that 
a decision upon the merits, as disclosed by the facts, was all 
that was sought. It is too late to raise the question now, 
even if it were of advantage to the appellant, which it is not, 



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Matter of Balducci. 57 

App. Biv.] Third Department, January, 1991. 

and is not tenable. Let us assume it was raided. The court 
found upon sufficient evidence that the thirteen dollars back 
rent was not paid. Subdivision 2 of section 2231 of the Code 
provides, speaking of the tenant: "Where he holds over, 
without the like permission, after a default in the payment of 
rent, pursuant to the agreement under which the demised 
premises are held, and a demand of the sent has been made; " 
then follows the disjunctive " or " followed by the provision 
for a three days' notice. If the tenant were not in default 
after the demand made by the landlord, which was made 
and so found upon sufficient evidence by the court, and pay- 
ment refused by the tenant, which was also found by the 
court upon sufficient evidence, then the notice hereinbefore 
set forth put him in default. The lease provides that for any 
default in performance, via*, the payment of rait when due or 
a failure to save the landlord from damage, he at his " option 
may immediately terminate this lease upon three days' notice." 
The giving of the notice terminated the lease; the three days 
is grace given the tenant to move. In this case the notice 
was twenty-one days and it is urged that this tenant was prej- 
udiced because it was not made three days instead of twenty- 
one days. We fail to see where the notice served was dis- 
advantageous to the tenant because he was given a longer 
time to move, viz., twenty-one days. This proceeding was 
not brought for the recovery of rent, but solely to recover 
possession of the premises described in the petition; and, 
after default in payment of rent and failure to perform the 
covenants of the lease, and after the service of the notice, was 
maintainable. (People ex rel. TerwiUiger y. Chamberlain, 
140 App. Div. 503.) It is urged that summary proceedings' do 
not lie under section 2231 upon the further ground, presumably, 
because a failure to perform the covenants agreed to be per- 
formed by the tenant in this lease is not specified in that 
section. The answer to that argument is that the landlord 
and tenant can, and in this lease did, agree What should con- 
stitute a breach of the covenants. The cases hold that such 
breach is available to the landlord in summary proceedings. 
(MHJer v. Levi, 44 N. Y. 489; Matter of Szpakowski, 166 
App. Div. 578.) A well-considered opinion on the question 
involved here is reported in Martin v. Crossley (46 Misc. Rep. 



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58 Matter of Balduccl 

Third Department, January, 1021. [Vol. 195. 

254). The rule stated in 44 Neve York, 489 (supra) seems to 
have been followed and cited with approval quite generally. 
(Sdkreiber v. EUcin, 118 App. Div. 244; Scheele v. Waldman, 
136 id. 679.) The tenant seems to assume that such acts 
of commission and omission as give rise to respondent's com- 
plaints occurred before he acquired the property, and that he 
took the property loaded with such defects, if they existed, and 
has no remedy in law by reason thereof. The evidence shows 
that the most serious breach of the contract occurred after 
respondent took title, viz., the removal of the top or roof of 
the asbestos booth; for that fifty cents a hundred was added 
to the premium rate he had to pay for his insurance. Some 
uninsulated flexible cords were introduced in the electrical 
system, the presence of sand in the booth was omitted, and the 
non-payment of the rent found due, were all after Balducci 
purchased the property. It is further urged that respondent 
knew of those changes and by not forbidding them he waived 
his right to complain. He may have seen some of those 
changes, but he did not know the effect. It appears that he is 
not possessed of the technical knowledge required to determine 
the menace of bare wires, uninsulated flexible cords, and open 
asbestos booths where electrical equipment is operated. He 
cannot be held to have consented to what he did not know. 
Even the Underwriters Association has to employ an electrical 
inspector to fix the hazard and apportion insurance rates 
accordingly. The landlord received his first notice when he 
was called upon to pay at the rate of $180 extra insurance 
premium because of the violation; then he did act; he asked 
the tenant to put the system in the same condition in which it 
was before the changes were made. The neglect and refusal 
of the tenant to comply with such request were reasons 
(breach of contract) that justified this proceeding. The 
suggestion that the trial proceeded along lines similar to those 
followed in an ejectment action is not far afield; but who is 
responsible for the theory and method and subsequent course 
of the trial until a decision was reached? One will search this 
record in vain for a specific motion or objection where either 
the procedure or practice is assailed. By common consent 
the issues were joined and by common consent they were 
developed by evidence relevant to such issues; the decision 



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Book v. Book. 59 



App. I>iv.] Third Department, January, lttl. 

of the court was urged by each in his favor, upon the evidence 
so produced, and a decision of the court was had before the 
theory, practice and procedure now urged were advanced. 
It is urged by appellant that if this court shall sustain the order 
granted against him, the evidence justifies a finding that the 
breach upon which the proceedings were based was not willful, 
and that some other compensation than dispossession should 
suffice and be satisfactory to the landlord. As before observed, 
this is not a proceeding for rent, nor for money damages; 
there is no basis upon which we can fix compensatory damage 
to the respondent and at the same time uphold appellant's 
right of occupation under the lease. 
The order should be affirmed, with costs. 

Order unanimously affirmed, with costs; H. T. Kellogg, 
J., not sitting. 



Adaline Rock, Appellant, v. Levi Rock and Lena Rock, 

Respondents. 

Third Department, January 5, 1921. 

Ejectment — proceedings based on deed alleged to have been exe- 
cuted by defendants to plaintiff's grantor — evidence required to 
overcome presumption of execution arising from certificate of 
acknowledgment — case properly submitted to Jury. 

In an action in ejectment based on a deed alleged to have been executed by 
defendants to the plaintiff's grantor which bore a proper -certificate of 
acknowledgment of the execution of the deed by the defendants with 
their marks, the defense interposed was that the defendants never executed 
the- deed in question. 

EM, that the certificate of acknowledgment to a deed is prima Jade 
proof only of its due and proper execution and as such takes the case to 
the jury. 

On the evidence introduced the case was properly submitted to the jury and 
there was more than a bare preponderance of evidence, supported by 
uninterested witnesses, and it was for the jury to decide, having seen the 
parties and .the witnesses and their manner of testifying, whether the proof 
as submitted was so clear and convincing as to amount to a moral certainty 
that the deed in question was not executed by the defendants. 

Appeal by the plaintiff, Adaline Rock, from a judgment of 
the Supreme Court in favor of the defendants, entered in the 



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60 Book v. Book:. 



Third Department, January, 1981. [Vol. 106. 

office of the cierk of the county of Clinton on the 26th day of 
July, 1919, upon the verdict of a jury, and also from an order 
entered in said clerk's office on the 26th day of July, 1919, deny- 
ing plaintiff's motion for a new trial made upon the minutes. 

Alien & Allen [Seth S. Allen of counsel], for the appellant. 

Victor F. Boire, for the respondents. 

Kiley, J.: 

This is an action in ejectment. The plaintiff is the mother 
of the defendant Levi Rock and mother-in-law of the defend- 
ant Lena Rock. Gilbert Rock, a witness sworn on the trial, 
is the husband of plaintiff and the father of the defendant 
Levi Rock and father-in-law of the defendant Lena Rock. 
Ori the 27th day of April, 1903, Sarah Ann Baker of the State 
of Illinois deeded to the defendant Levi Rock the real estate 
and premises described in the complaint in this action. Plain- 
tiff claims to own this real estate upon which defendants 
reside and possession of which they have had since the date of 
the aforementioned deed, April 27, 1903, and which deed was 
recorded in the Clinton county clerk's office May 25, 1903. 
Plaintiff bases her claim of title, first, upon a deed dated May 
23, 1903, two days before the deed to defendant Levi Rock was 
recorded, purporting to have been given, made and executed 
by the defendants to Gilbert Rock, which deed was not recorded 
until November 7, 1917, and by him conveyed to plaintiff by 
deed dated November 8, 1917, and recorded on that day in the 
Clinton county clerk's office. The trial of the action com- 
menced on the 16th day of April, 1919, and resulted in a 
verdict of the jury in favor of the defendants. Motion was 
made by the plaintiff to set aside the verdict and for a new 
trial, which was denied. The only question litigated was, 
whether defendants signed, acknowledged and delivered the 
deed to Gilbert Rock, Jr., called herein Gilbert Rock. The 
notary whose name was signed to the acknowledgment on 
the alleged deed to Gilbert Rock was called in behalf of the 
plaintiff and testified that it was his signature to the acknowl- 
edgment, but while he remembered the parties being before him 
some time for some business about papers they wanted executed 



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Bock v. Rock. 61 



App. Dir.] Third Department, January, 1921. 

he did not remember anything about a deed, and had no recol- 
lection except that it was his signature to the acknowledgment. 
Plaintiff and his wife testified that they wore present and that 
the plaintiff furnished the money. Defendants deny that 
any such transaction took place, and that they never heard 
anything of the transaction nor knew anything about it until 
some time before, when the defendant Levi Rock had some 
trouble with plaintiff over wages he claimed she owed him. 
The defendants denied that they signed the deed. Defendants 
called a witness who was present at a meeting of all the parties 
here concerned, when some papers were being made regarding 
the property of the parties (plaintiff and her husband), and 
he asked them about the Beartown lot (the lot in question) and 
they said it belonged to Levi, and that lot was not included 
in the disposition then made. This occurred four or five 
years before the trial of this action. The purported deed 
was signed, apparently, by the parties by their mark. The 
evidence as to who wrote the defendants' names is found in 
the testimony of the witness Agnew, who swore he drew the 
deed and wrote the name of Levi Rock, but did not make the 
mark nor write the name of the wife; it was not executed 
before him. The notary swore that none of the instrument was 
in his handwriting except his signature as notary. Lena Rock 
swore she never was in his office. Another witness swears 
that she furnished part of the money to the defendants when 
the land was purchased of Mrs. Baker. While Levi Rock 
can sign his name and did so upon the trial, the signature 
so made being produced upon the argument upon appeal, it 
appeared that he did some times sign by mark. His signature 
made upon the trial is clear, well written and shows no 
necessity for signing by mark. The evidence shows that this 
property was assessed to defendant Levi Rock, and that he 
paid the taxes; that he always, since acquiring the title in 
1903, occupied the premises; that he exercised all acts of 
ownership over it, even after he had trouble with the plaintiff. 
The jury saw the parties and evidently thought defendants 
were the rightful owners. Appellant urges that, even if the 
defendants produced the preponderance of evidence, on account 
of the certificate of acknowledgment the judgment should 
have been for plaintiff; that the proof was not so elear and 



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62 Bock v. Bock. 



Third Department, January, 1921. [Vol. 19& 

convincing as to amount to a moral certainty that the 
defendants were right. Section 935 of the Code of Civil 
Procedure provides that "A conveyance, acknowledged or 
proved, and certified, in the manner prescribed by law, to 
entitle it to be recorded in the county where it is offered, is 
evidence, without further proof thereof." Section 936 of the 
Code provides that " the certificate of the acknowledgment, 
or of the proof of a conveyance, or the record, or the transcript 
of the record, of such a conveyance, is not conclusive; and 
it may be rebutted, and the effect thereof may be contested, 
by a party affected thereby." In 1896 the Court of Appeals 
laid down the general rule (Albany County Savings Bank v. 
McCarty, 149 N. Y. 71, at p. 80 of the opinion) contended 
for by the plaintiff, appellant, here, viz.: That such certificate 
" should not be overthrown upon evidence of a doubtful char* 
acter , such as the unsupported testimony of interested witnesses, 
nor upon a bare preponderance of evidence, but only on proof 
so clear and convincing as to amount to a moral certainty." 
That case is the leading authority in this State and collates 
and reviews decisions previously had upon the question, not 
only in this State, but in several other States. Applying the 
reasoning to the case then before the court, it was held that 
" While the evidence is not conclusive, as the statute provides 
that * it may be rebutted and the effect thereof contested by 
a party affected thereby/ it is of such a character as, standing 
alone, to send a case to the jury, so that they may decide 
between the probative force of the certificate, supported by 
the presumption that it states the truth, on the one hand, and 
the evidence produced in rebuttal, whatever it may be, on 
the other." The court did not disturb the finding of the 
referee on that point; but did reverse the judgment on errors 
in rejection of evidence. That case holds that the act of 
taking an acknowledgment is not judicial but ministerial in 
its character. (Page 83 of the opinion.) Appellant contends 
that the case in the Court of Appeals here referred to is the 
law of the State; hence, what is the effect of the general 
rule laid down? (Page 80.) The evidence must not be of 
doubtful character; it must not be the unsupported testimony 
of interested witnesses, and finally it must be more than a 
bare preponderance of evidence. It is then stated, " but 



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Bock v. Rock. 63 



App. Div.] Third Department, January, 1921. 

only on proof so clear and convincing as to amount to a moral 
certainty." It means evidence of probative force, and yet, 
when the judgment of the Court of Appeals is finally reached, 
it is said in effect, and in many other cases in so many words, 
that sections 935 and 936 (supra) make a certificate of the 
notary prima facie proof only, and as such takes the case 
to the jury. (Rogers v. PeU, 154 N. Y. 518, 530.) In 
Marden v. Dorihy, No. 2 (12 App. Div. 188) it is said the 
introduction of the certificate makes out a prima fade case 
the same as evidence of a disinterested witness. In Uvalde 
Paving Co. v. City of New York (99 App. Div. 327, 
at p. 333 of the opinion) it is said the certificate raises a 
presumption of due execution and that such presumption 
must be weighed against the opposing evidence. (Stainton v. 
Kaiser Improvement Co., 161 App. Div. 603.) This case holds 
that 149 New York, 71 (supra) is to the effect that the certifi- 
cate raises a question of fact. In the final analysis, subject 
to the rule laid down in 149 New York, 71, as interpreted 
by these later cases, the case under consideration was properly 
submitted to the jury, and there was more than a bare 
preponderance of evidence, supported by disinterested wit- 
nesses. It was for the jury to decide whether the proof thus 
submitted, having seen the parties and the witnesses and 
their manner of testifying upon the stand, was so clear and 
convincing as to amount to a moral certainty. Appellant 
invokes the rule that, the deeds having been recorded, delivery 
is presumed. That is a sound rule, but the jury having f ound 
that the defendants did not execute, acknowledge and deliver 
the deed upon which plaintiff's title depends, it has no 
application here. (Caecioppoli v. Lemmo, 152 App. Div. 650.) 
The judgment should be affirmed, with costs. 

Judgment and order unanimously affirmed, with costs. 



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64 Warner v. Brill. 



Third Department, January, 1921. [Vol. 195. 



Oscab Wabnbr, as Administrator, etc., of Scena Mushaw, 
Deceased, Appellant, v. Jacob Brill, Respondent. 

Third Department, January 5, 1921. 

Motor vehicles — action against owner of car for death of occupant 
— effect of release given to owner of another oar involved in same 
accident — verdict not against weight of evidence — objection to 
charge of court as to joint tort feasors not taken at trial not avail- 
able on appeal. 

In an action to recover for the death of the plaintiffs daughter it appeared 
that she was riding in the defendant's car and that as the defendant 
attempted to pass another automobile to the left his car went off the mac- 
adam road into a depression or ditch and struck a telephone pole head-on 
throwing the plaintiff's daughter from the car and killing her; that the 
principal defense interposed was that the negligence of the owner of the 
other car in forcing the defendant off the road caused the accident, and 
that the plaintiff had settled with said owner for a substantial sum. 

Held, that the verdict in favor of the defendant was not against the weight 
of the evidence. 

The release given to the owner of the other oar did not preclude the plaintiff 
from bringing this action inasmuch as it is expressly provided by sections 
230 and 231 of the Debtor and Creditor Law that a joint debtor may make 
a separate composition with his creditor, and that a composition as made 
does not impair the creditor's right of action against any other joint debtor, 
unless an intent to release or exonerate him appears affirmatively upon 
the face of the instrument. 

However, by virtue of section 232 of the Debtor and Creditor Law, the 
defendant had the right to interpose the defense that the owner of the 
other oar was the one whose negligence caused the accident, and that the 
defendant was not negligent. . 

The failure of the plaintiff to except to the charge of the court in submitting 
the question of joint tort feasors to the jury precludes him from raising 
on appeal any objection thereto. 

Appeal by the plaintiff, Oscar Warner, as administrator, 
etc., from a judgment of the Supreme Court in favor of the 
defendant, entered in the office of the clerk of the county 
of Pulton on the 17th day of December, 1919, upon the ver- 
dict of a jury, and also from an order entered in said clerk's 
office denying plaintiff's motion for a new trial made upon the 
minutes* 



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Warner v. Brill. 65 



App. Div.] Third Department, January, 1921. 

Eugene D. Scribner, for the appellant. 

Ainsworth, Carlisle, SiMUxm & Archibald [John N. Carlisle 
of counsel], for the respondent. 

Kilet, J.: 

The plaintiff in this action is the father and administrator 
of the estate of his deceased daughter, Scena Mushaw. The 
action is brought against the defendant, based upon an 
allegation of negligence on the part of the defendant in so 
driving a car in which the said Scena Mushaw was riding 
with him, in such a negligent manner that she, with others, 
was thrown out, all injured, and she killed. The facts, 
briefly, are these: On the 2d day of September, 1918, the 
respondent was driving on the macadam highway leading 
from Mayfield, N. Y., to Gloversville, N. Y., in Fulton county. 
He had riding with him plaintiff's intestate and others. His 
car was a Chevrolet. Ahead of him and going in the same 
direction was one Conrad Hartung driving a Buick car. The 
defendant attempted to pass him to the left and went off 
from the macadam into the depression or ditch and struck 
a telephone pole head-on. The appellant's intestate was 
thrown out and killed. The charge against defendant is that 
he negligently drove the car at an excessive rate of speed 
and was careless in handling and driving his car and thus 
was responsible for the injury that occasioned the death of 
Scena Mushaw. . Respondent's evidence is to the effect that 
Hartung turned his car to the left when respondent tried 
to pass him, and collided with him, forcing him off the road 
so that he collided with the telephone pole. Defendant in 
his answer alleged and it was proved upon the trial that 
defendant, this plaintiff and the other occupants of the car 
brought actions against Conrad Hartung, driver of the Buick 
car, for damages, charging negligence, and settled with Hartung 
for a substantial sum. The position of the respondent, under 
this allegation, is that if he was negligent, Hartung was also 
negligent, and that they were joint tort feasors. The trial 
judge submitted that question to the jury, instructing the 
jury that if they were joint tort feasors, plaintiff could not 
App. Div.— Vol. CXCV. 5 



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66 Wabnbr v. Brill. 



Third Department, January, 1921. [Vol. 195. 

recover; that if they were joint tort feasors, the release of 
one released both. The question of Hartung's negligence was 
also submitted to the jury. Appellant urges that the verdict 
is against the weight of evidence, and that the court erred 
in submitting the question of the negligence of Hartung and 
defendant, as to whether they were joint tort feasors, claiming 
that plaintiff had the right to settle with Hartung and also 
collect from defendant for the same injury. The verdict is 
not so against the weight of evidence that it should be 
disturbed upon this appeal. The other question urged as 
sufficient for a reversal of the judgment has had, from early 
times, a stormy course through the courts of this country and 
England. In this State the doctrine governing the liability of 
joint debtors, sometimes called joint tort feasors, was formerly 
found in sections 1942-1944 of the Code of Civil Procedure, 
now found in sections 230 to 233, inclusive, of the Debtor and 
Creditor Law and in section 1943 of the Code of Civil Pro- 
cedure (as amd. by Laws of 1909, chap. 310). Section 230, so 
far as applicable here, reads as follows: " A joint debtor may 
make a separate composition with his creditor. Such a com- 
position discharges the debtor making it; and him only. The 
creditor must execute to the compounding debtor a release of the 
indebtedness or other instrument exonerating him therefrom." 
Section 231 reads as follows: " An instrument making a com- 
position with a creditor does not impair the creditor's right of 
action against any other joint debtor, or his right to take any 
proceeding against the latter; unless an intent to release or 
exonerate him, appears affirmatively upon the face thereof." 
Gilbert v. Finch (173 N. Y. 455) and Walsh v. N. Y. C. & 
H. R. R. R. Co. (204 id. 58) discuss the interpretations that 
should be given to the provisions of the two sections quoted 
and to the other sections to which I have hereinbefore referred, 
sections 232 and 233 of the Debtor and Creditor Law (sections 
1942, 1944 of the Code of Civil Procedure before they were 
transferred under the above-named title). The release in this 
case reads as follows: 

" Know all men by these presents, that I, Oscar Warner, as 
administrator of the goods, chattels and credits of Scena 
Mushaw, deceased [plaintiff in this action], for the sole 
consideration of $1.00 and settlement made in the case of 



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Warner v. Brill. 67 



App. Div.] Third Department/ January, 1921. 

Anthony Mushaw, an infant, to me in hand paid by Conrad 
Hartung, have released and discharged, and by these presents 
do for myself, my heirs, executors, administrators and assigns, 
release and forever discharge the said Conrad Hartung of and 
from all claims, demands, damages, actions, or causes of action, 
on account of injuries resulting, or to result from an accident 
to Scena Mushaw, which occurred. on or about the 2nd day 
of September, 1918, by reason of accident near Gloversville 
on the State road and of and from all claims or demands 
whatsoever in law or in equity, which I, my heirs, executors, 
administrators or assigns can, shall or may have by reason 
of any matter, cause or thing whatsoever prior to the date 

[Signed and sealed.] 

This release runs to Conrad Hartung alone, and did not 
preclude the plaintiff from bringing this action. However, 
we find section 232 of the Debtor and Creditor Law providing 
as follows: " Where a joint debtor including a partner has 
compounded, a joint debtor who has not compounded, may 
make any defense or counterclaim, or have any other relief , 
as against the creditor, to which he would have been entitled, 
if the composition had not been made." While the evidence 
of all that took place before the accident and since, down 
to the trial, was given in evidence, the principal defense of 
this respondent was that Hartung was the one whose negli- 
gence caused the accident. If there is any error in the sub- 
mission of the question of joint tort feasors, as presented in 
the charge of the court to the jury, it does not avail the 
appellant here; he apparently acquiesced in the theory fol- 
lowed by the court and did not except to the charge. He 
cannot raise it for the first time on appeal. 

The judgment should be affirmed, with costs. 

Judgment and order unanimously affirmed, with costs. 



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68 Stone v. Molby Boiler Co., Inc. 



Third Department, January, 1921. [Vol. 190. 



Charles W. Stone, Appellant, v. Molby Boiler Company, 
Inc., Respondent. 

Third Department, January 5, 1921. 

Sales — action for breach of warranty of house-heating plant — 
defense that plant was sold to and warranty given to dealer and not 
to plaintiff — interpretation of contract of warranty — right to 
repudiate contract for breach of warranty not waived — offer to 
return defective plant not necessary where defendant refuses to 
receive — verdict against weight of evidence. 

In an action to recover for breach of warranty of a steam boiler purchased 
by the plaintiff from defendant for the purpose of heating the plaintiff's 
house, the defense interposed by the defendant that the warranty was not 
made to the plaintiff but to the local dealer, who arranged for the purchase 
of the boiler as plaintiff's agent, because, by the rules of the trade, the 
defendant could not sell his product to an individual but must sell to a 
dealer or contractor, is not maintainable where there is no evidence that 
the plaintiff had knowledge or consented to be bound by any such rule. 

The interpretation of the specification in the guaranty that " all our ratings 
are for direct radiation, figured to heat building to 70° Fahr.," given by 
the defendant to the effect that the guaranty was only for the heating of 
the surface of the radiation and not for the heating of the building, was 
not controlling, and the contract itself and the acts of the parties and other 
evidence establishes that such was not the proper interpretation. 

The use of the boiler after a test made by the defendant's president, which 
showed that it could not heat the house of the plaintiff, did not waive the 
plaintiff's right to repudiate the contract, for at the time of the test the 
defendant took the position that when the house was fully completed and 
furniture in, and the family settled down to normal life, the plant would 
do the required work. 

It was not necessary for the plaintiff to offer to return the boiler to the 
defendant in order to maintain an action for breach of warranty since the 
defendant repeatedly refused to receive it if it was returned. 

The verdict of the jury in favor of the defendant was against the weight of 
the evidence. 

Appeal by the plaintiff, Charles W. Stone, from a judgment 
of the Supreme Court in favor of the defendant, entered 
in the office of the clerk of the county of Schenectady on the 
25th day of February, 1920, upon the verdict of a jury, and 
also from an order entered in said clerk's office on the 27th 
day of February, 1920, denying plaintiff's motion for a new 
trial made upon the minutes. 



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Stone v. Molby Boiler Co., Ino. G9 

App. Div.] Third Department, January, 1921. 

Nay Ion, Robinson & Maynard [Daniel Naylon,- Jr., of 
counsel], for the appellant. 

Bartholomew Foody, Jr., for the respondent. 

Kiley, J.: 

Plaintiff's motion for a new trial should have been granted; 
it was denied. The verdict for the defendant dismissing 
plaintiff's complaint is overwhelmingly against the weight of 
evidence. The plaintiff, appellant, resides in the town of 
Niskayuna, Schenectady county. In the summer of 1917 he 
built a new house near his former residence in said town and 
county. He employed one J. E. Harbison, a plumbing and 
heating contractor, of Schenectady, to superintend and oversee 
the installing of a heating plant in the new house. Appellant 
selected the " Molby Down Draft Boiler " as the type he 
wanted; he authorized Harbison to procure such boiler with 
accessories that made a complete furnace. A heating 
inspector of Brooklyn prepared the plans for the heating 
plant. With these plans in his possession, in the month of 
March, 1917, Harbison went to defendant's place of business 
in Brooklyn, N. Y. f and told its president that he wanted 
one of its make of boilers to install in the heating plant of 
plaintiff in the house that was then being constructed. He 
dealt with the president of the defendant, informing him that 
he represented the plaintiff and was acting for him. Defend* 
ant sold the boiler and accessories to the plaintiff in accordance 
with the guaranty set forth in the complaint in this action. 
That there might not be any mistake about the guaranty and 
its scope, and. before the boiler was paid for, and at a time 
when a test, satisfactory to the plaintiff, could not be made, 
defendant, through its president, wrote to appellant as follows: 

"New York, 11/27/17. 
"W. C. Stone c/o John E. Harbison, 

"Schenectady, N. Y.: 
" Pear Sir. — In connection with the S-1031 Molby Boiler 
installed in your residence in Schenectady. We are pleased 
to guarantee the boiler capable of carrying the radiation as 
specified when the building is furnished and occupied and the 
apparatus working under normal conditions. We guarantee 



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70 Stone v. Molby Boiler Co., Inc. 

Third Department, January, 1921. [Vol. 196. 

the boiler free from defects in manufacture and will replace 
any parts so found defective. Our guarantee in the catalogue is 
to be considered part of this guarantee. 
" Very truly yours, 

" MOLBY BOILER CO., Inc. 

" E. MOLBY." 

Attached to the guaranty and a part of it is a schedule 
marked " Ratings," and provides " all our ratings are for direct 
radiation, figured to heat building to 70° Fahr." This is 
important in view of the position taken by the defendant in 
giving its evidence. This boiler was received in the early 
fall or late summer of 1917 ; the first fire was built in September, 
1917, and it did not work satisfactorily and the president 
of the defendant came to the house in 1917 and a test was 
made by him. It seems to have been mutually agreed that 
the conditions prevailing were not such that a fair test could 
be made of the plant; the house was more or less open, windows 
not in, and the decision on the test was deferred until a later 
date; plaintiff kept trying to fire the boiler and get up steam. 
There was not to exceed 2,500 feet of radiation in the house; 
the boiler in question was rated to have a steam capacity 
of 4,050 feet. About November 23, 1917, the defendant's 
president, Mr. Molby, came on again for another test; the 
house was then practically inclosed; the windows, except two 
or three in the upper part, were covered with sized factory 
cloth, the boiler was cleaned out, and coal procured, such as 
was designated for use in this boiler by the specifications in 
the guaranty; the test, lasting three or four hours, was made; 
the plant did not heat the building. The family had not 
moved in at that time; the interior finish was not completed; 
floors not all laid, much inside work yet to be done, and again 
it appears from the record that it was mutually agreed that 
the conditions were not ideal for the test. This test was 
made by the defendant's president and without any fault 
being found by him as to any defect in the heating system 
or facilities furnished for making it. The defendant taking 
the position that, when the house was completed and furniture 
in and family settled down to normal, every day life, the plant 
would do the work required to heat the house. The workmen 



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Stone v. Molby Boiler Co., Inc. 71 

▲pp. Div.] Third Department, January, 1931. 

continued to work in the house during that winter. The record 
is replete with continued effort to get heat out of the furnace 
and into the system; forty tons of pea coal were purchased 
and continual attention, in accordance with the printed and 
oral instruction furnished by the defendant, was given to the 
work; while it burned coal it did not force heat into the 
radiation sufficient to furnish moderate heat and warmth. 
The boiler continued to loose water, the water line did not 
hold up; the men were afraid to run it; the water line fluctuated 
rapidly, sometimes disappearing from view; the water line 
is what is usually called the " gauge/' and is the indicator 
or indicates the correct conditions prevailing or not prevailing, 
when the boiler is in operation. In the meantime the defendant 
was calling for payment. It fairly appears from the evidence 
that in December, 1917, payment was made, with the under- 
standing that such payment should in no way preclude the 
plaintiff from insisting that the defendant perform on its 
part according to the terms of the guaranty. The house 
was not complete until the summer of 1918, when furniture 
was moved in; and the family commenced occupation. Con- 
ditions, both oral and written, were then complete. Fire 
was started in the boiler and as cold weather came on it did 
not furnish heat. The evidence, by every reasonable intend- 
ment, shows that reasdhable, fair and intelligent effort was 
put forth by the plaintiff to use the boiler -after the fire was 
lighted in the fall of 1918. He notified the defendant that he 
had failed; that its boiler would not heat the house, and asked 
that a representative of the defendant come there and see 
for himself; that he would have to take the boiler out, and 
asked for shipping instructions. Defendant replied that it 
would not accept the boiler, and refused or neglected to give 
shipping instructions. Plaintiff took the boiler out and 
installed another and sued defendant for breach of its warranty 
and for damages with the result aforesaid. Upon the trial 
defendant found no fault with the system of radiation furnished 
by plaintiff to go with this boiler. The defense was that 
the boiler was sold to Harbison, and not to plaintiff; that 
if it made a guaranty, which it denies, as interpreted by 
plaintiff, it was made to Harbison; that the boiler was as 
guaranteed, as i{ interprets it, and that faulty operation and 



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72 Stone v. Molby Boiler Co., Inc. 

Third Department, January, 1921. [Vol. 199. 

fuel was the approximate cause of the failure; that plaintiff 
waived his right to repudiate the contract by continuing the 
use of the boiler after he had discovered the imperfections; 
and finally that plaintiff did not give reasonable notice of 
the breach. The evidence of both plaintiff and defendant 
proves that Harbison was acting for the plaintiff, the defendant 
advancing the information and reason why Harbison did 
not act as agent that by the rules of the trade it could not 
sell to an individual, but must sell to a dealer or contractor. 
I know of no law that permits a union or organization of 
dealers in building supplies to formulate rules that limit 
or destroy the law of the land; the jury should have been 
instructed to that effect; there is no evidence that plaintiff 
had knowledge or consented to be bound by any such rule. 
As -to the question of guaranty, that is not seriously denied; 
but defendant contends that it involves only the heating of 
the surface of the radiation and has nothing to do with the 
heating of the building in which the boiler is installed. The 
defendant's president swore, in effect, that it did not concern 
it whether the plant, equipped with its boiler, heated the 
building when it was installed or not; that each boiler was 
given the maximum rating attained under the most favorable 
conditions of fuel and atmosphere that could be had; and 
that the purchaser must know that and make due deduction 
on account of such false representation, or suffer the conse- 
quences. There was only one witness sworn for the defendant, 
viz., its president, and it would seem these last two explana- 
tions as to trade rules and his interpretation of the guaranties 
made is at the foundation of all of this most strange and, 
under the circumstances, novel evidence. The question is 
not how defendant interpreted its contract, but how, after 
reading this clause in the specifications of its guaranty, viz., 
"All our ratings are for direct radiation figured to heat 
building to 70° Fahr.," an ordinary intelligent purchaser 
would be justified in interpreting it. The ordinary jury, with- 
out minute and detailed instruction, could not be expected to 
see and consider the force of the limited construction put 
upon its contract by its witness. That such narrow inter- 
pretation by the defendant of its contract with the plaintiff 
was wrong appears from the contract itself, from the acts 



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Stone v. Molby Boiler Co., Inc. 73 

App. Div.] Third Department, January, 1921. 

of the parties and from the evidence. As to faulty fuel or 
operation, the evidence shows, and it is not contradicted, 
that after the November, 1917, test, competent men and 
fuel were furnished and the printed instructions of the 
defendant were followed. As to the use of the boiler after 
the November, 1917, test waiving plaintiff's right to repudiate 
the contract, there is a rule, as old as the law of any civilized 
nation, that when, by acts or statements, one party lulls 
another into a sense of security as to his existing right, such 
party cannot then take advantage of such other party, to 
his detriment, and thus advantage the alluring party, in his 
own behalf, to destroy those rights. There was but a weak 
denial, if any, of the evidence given by plaintiff showing the 
understanding between the parties that any rights plaintiff 
had were not to be waived by payment or while he was trying 
to make the boiler operate. Defendant here urges that the 
plaintiff is confined to the remedy given him under section 
150 of the Personal Property Law (as added by Laws of 1911, 
chap. 571), known as the Sales of Goods Act. That act did 
little more than codify the case and statute law theretofore exist- 
ing, and plaintiff's procedure does notpffend its provisions. He 
did offer to return the boiler; defendant refused to receive it if 
it was returned; he was not called upon to do a useless act after 
such refusal. Under the circumstances, the holding of the jury 
that he did not give notice of his recision within a reasonable 
time was against the weight of evidence. Time alone is not 
the essence of the force that destroys the effectiveness of a 
notice or, in this case, the notice. The delay was due to the 
representations of the defendant; any finding to the contrary is 
against the weight of evidence as it appears from this record. 
Under the charge of the court the jury must have found 
against the plaintiff upon every proposition; the plaintiff did 
everything he could, working, according to suggestions and 
instructions of the defendant, to make the boiler a success. I 
cannot escape the conclusion that this verdict is against the 
weight of the evidence. I am not unmindful of the fact that 
we cannot substitute our judgment for that of a jury; we do 
not do that or intend to, but it is the right of the respondent 
to know wherein we think the verdict is against the weight of 
evidence. That is all we are trying to do here. 



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74 Brady v. Holbrook, Cabot & Rollins Corporation. 

Third Department, January, 1921. [Vol. 195. 

The judgment and order should be reversed and a new trial 
granted, with costs to the appellant to abide the event. 

All concur. 

Judgment and order reversed and new trial granted, with 
costs to the appellant to abide the event. 



Before State Industrial Commission, Respondent. 

In the Matter of the Claim of Joseph F. Brady, Respondent, 
for Compensation under the Workmen's Compensation Law, 
v. Holbrook, Cabot & Rollins Corporation, Employer 
and Self-Insurer, Appellant. 

Third Department, January 5, 1921. 

Workmen's Compensation Law — fracture of lower end of bone of 
right leg — amputation of leg at middle one-third of right thigh 
because of existence of malignant bone cancer — award for low of 
leg reversed. 

An award for the loss of a leg should not be made where it appears that the 
claimant fractured the lower extremity of the right femur and that the 
amputation of his leg at the middle one-third of the righlfthigh was made 
necessary because of the existence of a malignant bone cancer which was 
discovered after the fracture. 

H. T. Kellogg, J., dissents. 

Appeal by the defendant, Holbrook, Cabot & Rollins 
Corporation, from a decision and award of the State Indus- 
trial Commission made on the 12th day of May, 1920. 

Adolph Hansen, for the appellant. 

Charles D. Newton, Attotney-General [E. C. Aiken, Deputy 
Attorney-General, and Bernard L. Shientag of counsel], for the 
respondents. 

Kiley, J. : 

From the employee's claim for compensation, as appears in 
the record, we find the accident occurred on the 29th day of 
January, 1919, under the following circumstances: Claimant 
was at work for the appellant, employer and self-insurer, in 
the new Broadway subway at Forty-third and Forty-fourth 



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Brady v. Holbrook, Cabot & Rollins Corporation. 75 

App. Div.] Third Department, January, 1921. 

streets, New York city, and his occupation was that of store- 
room keeper. On the day in question he says he was walking 
along a dark passageway, where there was an incline, 
and that he miscalculated as to his exact location, and 
stepping into space fell down the incline and fractured 
the lower end of the bone in his right leg. Evidence shows 
that it was the femur. He was taken to the Roosevelt 
Hospital. There the injury was diagnosed as a " pathological 
fracture lower extremity right femur." After careful examina- 
tion of the 1% at seat of injury, including the X-ray, it was 
discovered that he had a well-developed bone cancer at the 
seat of injury; amputation of the leg at middle one-third of 
right thigh was immediately had; this was deemed necessary 
because the growth so discovered was malignant. The evi- 
dence given previous to May 5, 1920, was to the effect that 
the injury had nothing to do with the presence of the cancer 
and was not the cause of the amputation of the leg. Not- 
withstanding such evidence, the Commission made an award 
to claimant as and for the loss of the leg. The employer 
appealed to this court and the appeal was heard at the Novem- 
ber term, 1919. The award was reversed. (189 App. Div. 
405.) Mr. Justice Woodward, writing for the court, Mr. 
Justice Lyon dissenting, said that the damage caused by the 
cancer was not compensable; that the cancerous condition, 
existing before the injury, was the only justification for the 
amputation of the leg. It is suggested in the opinion that an 
award might have been made for the accident ; but it is expressly 
held it could not be made for the loss of the leg. As I read 
the former holding of this court (189 App. Div. 405, supra), 
an award can be made as for a fracture of the lower extremity 
of right femur and the loss resulting therefrom and occasioned 
thereby, independent of, and not influenced by, the presence 
of the cancerous condition of the bone and the consequent 
amputation. The case was sent back to the Commission and 
some months after a hearing was had at which Dr. Lewy was 
examined and testified. Before the taking of testimony was 
commenced, Mr. Shientag, of counsel for the Commission, said: 
" My own feeling is that I want to ask Dr. Lewy to testify 
what in his opinion was the probable period of disability in a 
case of this kind, and have those facts in the record, and go 



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76 Hoffman v. Van Bbnthuysen Company. 

Third Department, January, 1931. [Vol. 195. 

up to the Court of Appeals on it." Dr. Lewy did not see the 
injury nor the claimant before amputation and necessarily testi- 
fied from the record previously made up and upon hypothetical 
questions. He said the surgical disability would be three 
months, convalescing period six months additional, and that 
there would be a permanent defect, evidenced by shortening 
of the leg, involving the knee joint, causing a loss of function 
which would be a vocational defect. He also said that from 
his past experience the condition which he found here would 
amount to about the loss of half the leg. The last award was 
for the entire loss of the leg, same as first made by the Com- 
mission. The ruling of this court on the former appeal 
limited the compensable injury to the fracture, exclusive of 
the bone cancer or any results flowing therefrom. It is not 
ambiguous, and is controlling here. 

The award should be reversed and the case remitted to the 
Commission with instructions to take evidence, if necessary, 
and make findings in accordance therewith. 

All concur, except H. T. Kellogg, J., who dissents and 
votes for dismissal. 

Award reversed and matter remitted to the Commission 
with instructions to take evidence, if necessary, and make 
findings in accordance therewith. 



Before State Industrial Commission, Respondent. 

In the Matter of the Claim of Christine Hoffman, Respond- 
ent, for Compensation under the Workmen's Compensation 
Law, for the Death of Her Son, William Hoffman, v. Robert 
Van Benthuysen Company, Employer, and Employers' 
Liability Assurance Corporation, Ltd., Insurance Car- 
rier, Appellants. 

Third Department, January 5, 1921. 

Workmen's Compensation Law — when mother not dependent on 

son. 

The claimant was not dependent on her son at the time of his death since the 
evidence shows that at that time she was receiving from her husband and 
several children approximately one hundred dollars per week and that 



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Hoffman v. Van Benthuysen Compant. 77 

App. Biv.] Third Department, January, 1921. 

she was the owner of two houses with an equity of several thousand dollars 
and with an income therefrom of approximately fifty-four dollars per 
week. 

Appeal by the defendants, Robert Van Benthuysen Company 
and another, from an award of the State Industrial Commis- 
sion, entered in the office of said Commission on the 29th day 
of March, 1920. 

BertrandL. Pettigrew [Walter L. Glenney of counsel], for the 
appellants. 

Charles D. Newton, Attorney-General [E. C. Aiken, Deputy 
Attorney-General, and Bernard L. SMentag of counsel], for the 
respondent State Industrial Commission. 

William V. Hagendom [Joseph M. Conroy of counsel], for 
the claimant, respondent. 

Keley, J. : 

The claimant is the mother of William Hoffman, who was 
an electrician's helper, and worked as such for the appellant 
employer, whose place of business is 243 Canal street, New York 
city. He was twenty-two years old, and on the 9th day of 
December, 1919, while engaged at his regular employment, for 
his employer, at Upper Nyack, N. Y., fell into the water and 
was drowned. The Industrial Commission has made an award 
to claimant, his mother, as a dependent at the time of his death 
of five dollars and seventy-seven cents a week. The insur- 
ance carrier resists payment upon the ground that the evidence 
does not warrant the conclusion that claimant was dependent 
upon the deceased at the time of his death. The evidence in 
this case shows that the claimant was the business end of a 
large family, and at the time of the death of William her 
husband earned twenty dollars a week and gave it all to her; 
that William, the deceased, was earning twenty dollars a 
week and that he gave it all to the claimant; her son Herman 
gave her seven dollars a week for his board; her son Charles 
gave her seven dollars a week for his board; she expected ten 
dollars a week from Henry; her son George pays her fifteen 
dollars to eighteen dollars a week; her daughter Margaret 
was earning ten dollars a week and gave it all to claimant; 
Ferdinand earned ten dollars a week and gave it all to her; 



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78 Hoffman v. Van Benthuysen Company. 

Third Department, January, 1921. [Vol. 106. 

for all paying over seven dollars she purchased their clothes 
and paid car fare. She purchased two houses, one in which 
the family lived, a double house, for which she agreed to pay 
five thousand and fifty dollars, and rents part of that house for 
fourteen dollars and fifty cents a month. Nine years before 
William's death she purchased another house for which she 
agreed to pay six thousand dollars and for which she was receiv- 
ing forty dollars or forty-one dollars a month rent. Upon this 
property which she had acquired she had paid, out of this 
income down to the time of William's death, sufficient so that 
she had an equity of three thousand four hundred and fifty dol- 
lars in the property at the purchase price, which in 1919 must 
have advanced in value considerably over the sum, and she was 
making her payments regularly at the time of the hearing in 
March, 1920. The title was in claimant; she was fifty-four 
years old; her husband was sixty-one years. If we could cal- 
culate with the future in view, this award might be upheld, but 
it is conditions at- time of the accident which resulted in death, 
under the Workmen's Compensation Law, with which we have 
to reckon. (Workmen's Compensation Law, § 16, subd. 4, 
as amd. by Laws of 1916, chap. 622.) Turn these facts which 
way you will, the inference is irresistible that because two of 
the boys anticipated marriage, thus decreasing her income, 
claimant anticipated that in the future she would not be able 
to save as much as she had in the past to pay upon her real 
estate investments. 

Respondent's attorney, William V. Hagendorn, put in a 
brief citing as authority Matter of Hendricks v. Seeman Bros. 
(170 App. Div. 133); Matter of Rhyner v. Hueber BUg. Co. 
(171 id. 56) and Matter of Walz v. Holbrook, Cabot & Rollins 
Corp. (170 id. 6), which come perilously near sustaining respond- 
ent's contention. I think Birmingham v. Westinghouse Electric 
& Mfg. Co. (180 App. Div. 48); Wilkes v. Rome Wire Co. 
(184 id. 626) and Frey v. McLaughlin Bros., Inc. (187 id. 824), 
are controlling. These authorities seem to be applicable to 
the facts presented here. 

The award should be reversed and the claim dismissed. 

All concur. 

Award reversed and claim dismissed. 



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Asinof & Sons, Inc., v. Frbudbnthal. 79 

App. Div.] First Department, February, 1921. § r ^ / .< 

OF**' 



Morris Asinof & Sons, Inc., Appellant, t>. Carl Freuden- 
thal, Respondent. 

First Department, February 4, 1921. 

Sales — action by buyer for failure of seller to accept and pay for 
merchandise — correspondence between parties establishing mak- 
ing of contract. 

In an action by the seller against the buyer to recover damages for failure 
to accept and pay for merchandise, correspondence between the parties 
for the purpose of reducing to writing a contract which they had made 
through a broker, examined and held, to show prima facie the making of 
the contract. 

A formal answer by the seller to a letter of the buyer which would have 
merely been a reiteration of the seller's consent to the buyer's proposition 
with respect to the time of payment was not a condition precedent to the 
making of a valid contract. 

Appeal by the plaintiff, Morris Asinof & Sons, Inc., from 
a judgment of the Supreme Court in favor of the defendant, 
entered in the office of the clerk of the county of New York 
on the 20th day of October, 1919, upon the dismissal of the 
complaint by direction of the court at the close of the plaintiff's 
case. 

Loui$ Salant of counsel [Morton Stein with him on the brief], 
for the appellant. 

Jacob H. Corn of counsel [Siegel, Com & Siegel, attorneys], 
for the respondent. 

Laughlin, J.: 

This is an action by the seller of merchandise against the 
buyer thereof to recover damages for his failure to accept 
and pay therefor. The complaint, as amended by consent 
on the trial, is on a contract alleged to have been made between 
the parties on or about the 20th day of December, 1917, by 
which the plaintiff agreed to sell and deliver to the defendant, 
and the defendant agreed to purchase, two hundred and 
eighty pieces of mackinaw cloth, consisting of about forty-five 
yards to the piece, at the agreed price of $2.50 per yard, delivery 



y 



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80 Asinof & Sons, Inc., v. Fbeudenthal. 

First Department, February, 1921. [Vol. 195. 

f. o. b. New York, $5,000 to be paid in cash immediately 
upon receipt of the invoices by the defendant and the balance 
to be paid on or before January 5, 1918, with a proviso by 
which plaintiff was to be released from liability with respect 
to fifty-one pieces of the cloth, which then were in transit 
to the plaintiff, in the event that they were not received by 
it, and the defendant was given an option to take any or 
all of seventy-five additional pieces at the same price in case 
they should be received by the plaintiff as expected. At the 
suggestion of the defendant, who claimed that the minds 
of the parties had not met on a binding contract, the evidence 
with respect to the contract was presented in order that the 
point concerning the sufficiency thereof might be presented 
without incumbering the record with other evidence relating 
to the tender of performance by the plaintiff, its readiness 
and ability to perform and its damages. 

At the close of the evidence offered by the plaintiff with 
respect to the making of the contract, the complaint was 
dismissed on defendant's motion. The only point presented 
by the appeal, therefore, is whether the evidence shows prima 
facie the making of the contract. Plaintiff is a domestic 
corporation and its place of business was at the city of New 
York and the defendant was engaged in business at Baltimore, 
Md., under the name of L. Freudenthal & Son. It appears 
that the preliminary negotiations for the contract wqre had 
through a broker. 

On the morning of the. 21st of December, 1917, plaintiff 
wrote and mailed to the defendant a letter referring generally 
to the agreement made through the broker and inclosing 
invoices for 280 pieces of the cloth, and stating that it had 
on hand ready for shipment 229 pieces and had invoices for 
51 additional pieces which were in transit and which it expected 
to receive within a few days, the total net amount of the 
goods invoiced as $32,230.63, and stated that the terms of 
sale were that defendant should send a check for $5,000 
upon receipt of the invoices and remit for the balance by 
January 1, 1918, and that it was understood that if any of 
the 51 pieces should be lost in transit, plaintiff was not to 
be held responsible and that it was expecting 75 additional 
pieces, and that defendant could have them when received 



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Asinof & Sons, Inc., v. Frkudenthal. 81 

App. Div.] First Department, February, 1921. 

if he wanted them, and that the goods would be packed ready 
for shipment at defendant's disposal f. o. b. New York, 
Apparently there was no understanding as to which of the 
parties should communicate with the other first, for the day 
before the plaintiff so wrote the defendant, the defendant 
wrote the plaintiff confirming the order placed through the 
broker, but stating that the order was for 342 pieces, and 
with respect to the terms, stated the price the same as the 
plaintiff claimed and that a check was to be sent for $5,000 
on receipt of the invoices, but stating that the balance was 
to be paid between January first and January fifth, and the 
plaintiff was to hold the goods to defendant's order. The 
letter from the defendant was received by the plaintiff on 
the afternoon of December twenty-first, after its first letter 
of that date had been mailed and it thereupon wrote and at 
about six p. m. that day mailed another letter to defendant 
acknowledging the receipt of his letter confirming the order, and 
stating that it was entirely satisfactory with one exception 
and that was with respect to the number of pieces, and it 
therein stated that it could not hold itself responsible for 
the delivery of 342 pieces and that it had in stock 229 pieces 
and invoices for 51 more, and that there was hardly a possibility 
of its not receiving them, but that it could not hold itself 
responsible in case it did not, and it reiterated what had 
been stated in its first letter with respect to 75 additional 
pieces and closed by agreeing to deliver the 229 pieces which 
were on hand, and the 51 pieces when received, and as many 
of the 75 pieces when received as the defendant desired, and 
requested an acknowledgment by the defendant to the end 
that there might be no misunderstanding. On the twenty- 
fourth of December defendant wrote the plaintiff acknowl- 
edging the receipt of its letter of the twenty-first — evidently 
referring to plaintiff's first letter of that date — and stating 
that it wished to correct plaintiff's statement as to terms and 
referred to defendant's letter of the twenty-first, which it 
was conceded meant the twentieth, confirming the order and 
stating that the balance over the $5,000 would be paid by 
it between the first and the fifth of January and not between 
the date of the letter and the first of January as plaintiff 
App- Div,— Vol. CXCV. 6 



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82 Asinof & Sons, Inc., v. Freudenthal. 

First Department, February, 1921. [VoL 195. 

had proposed, and the letter closed with the following: " Please 
acknowledge this accordingly and oblige." This letter was 
not received by plaintiff until December twenty-sixth, and 
the suggested change by the defendant with respect to the 
time he was to have to pay the balance had already been 
assented to by the plaintiff in its second letter of December 
twenty-first, which evidently had not been received by the 
defendant when he wrote the letter of December twenty-fourth. 
The plaintiff, deeming that the defendant in the meantime 
must have received its second letter of December twenty-first 
assenting to the only change in the contract suggested by the 
defendant in this letter of the twenty-fourth of December, did 
not further communicate with the defendant concerning it; but 
not having received defendant's check for $5,000 on account of 
the invoices inclosed to him with its first letter of December 
twenty-first, wired him as follows: "Surprised not having 
received check five thousand dollars. Wire answer." After 
receiving this telegram, and on December twenty-sixth, defend- 
ant wrote plaintiff as follows: " Not having received a reply to 
our letter of the 24th inst., and as the terms specified by you in 
your letter of the 21st was not in accordance with our offer of 
Dec. 20th we herewith return the invoice and cancel the order." 
It does not expressly appear when the defendant received 
plaintiff's second letter of the twenty-first, but since defendant's 
letter of the twenty-fourth referred only to one of plaintiff's 
letters of the twenty-first, the jury would have been warranted 
in finding that at that time the defendant had only received 
the plaintiff's first letter of the twenty-first, which showed 
that plaintiff was only prepared to contract unconditionally 
for the delivery of 229 pieces of the goods, and that the 
defendant, by only suggesting that he be given until January 
fifth to pay the balance, assented to the plaintiff's first letter 
of December twenty-first with respect to the quantity of 
goods covered by the sale. The jury would also have been 
warranted in finding that the defendant before attempting 
to cancel the contract on December twenty-sixth, had received 
plaintiff's second letter of the twenty-first, consenting to the 
time of payment as specified in the defendant's letter of 
December twentieth and repeated in his letter of December 
twenty-fourth. That being so, defendant was fully informed 

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Asinof & Sons, Inc., v. Fbkudbnthal. 83 

App. Div.] First Department, February, 1921. 

by plaintiff's second letter of the twenty-first that it assented, 
to the only change in the contract suggested by the defend- 
ant, namely, the provision giving him until January fifth 
to pay the balance; and he received this information by 
that letter sooner than he could have received it had the 
plaintiff formally acknowledged the receipt tf/his letter of 
December twenty-fourth and repeated therein its assent to 
the time of payment desired by the defendant, which it had 
already done by its second letter of December twenty-first. 
Owing to the twenty-fifth being Christmas and a holiday, 
plaintiff did not receive defendant's letter of December twenty- 
fourth until the morning of the twenty-sixth, and at that 
time it was warranted in assuming that the defendant had 
received the desired information from its second letter of the 
twenty-first. In these circumstances, all of the terms of the 
contract had been definitely agreed to in writing before the 
defendant attempted to cancel the order; and it would be 
unreasonable, I think, to hold that a formal answer by the 
plaintiff to defendant's letter of the twenty-fourth which 
would have merely been a reiteration of its consent to his 
proposition with respect to the time of payment, was a condition 
precedent to the making of a valid contract. (Crossett v. 
Carleton, 23 App. Div. 366; Orr v. Doubleday, Page & Co., 
172 id. 97.) The facts here are clearly distinguishable from 
those presented in Pod v. Brun&wwk-Balke-Collender Co. (216 
N. Y. 310), for there the buyer's letter requesting acknowledg- 
ment proposed new terms which had not been assented to 
by the seller. Counsel for the respondent contends that this 
correspondence does not show a meeting of the minds of the 
parties with respect to the qwmtity of the goods covered by 
the order; and that although the defendant, when he wrote 
the letter of December twenty-fourth, had before him one or 
both of the plaintiff's letters of the twenty-first stating that 
plaintiff could not agree unconditionally to deliver 342 pieces 
of goods, he should not be deemed to have assented thereto 
by his letter of December twenty-fourth. I am unable to 
agree with that construction of the letter of the twenty-fourth. 
The letter is to be given the meaning which the defendant 
ought reasonably to have understood that the plaintiff would 
put upon it. (Moran v. Standard (HI Co., 211 N. Y. 187; 



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84 Asinop & Sons, Inc., v. Frki/denthal. 

First Department, February, 1901. [Vol. 186. 

Marshall v. Safikett & WUhelms Co., 166 App. Div. 141; 
Grossman v. Schenker, 206 N. Y. 466; Wood v. Duff-Gordm, 
222 id. 88.) Either as matter of law or as a question of fact, 
that letter may be given the construction that the defendant 
accepted the plaintiff's terms with respect to the quantity 
of the goods to be delivered, and that he only desired four 
additional days time within which to pay the balance of the 
purchase price over the initial payment of $5,000. It will 
not do to hold as matter of law, as contended by the counsel 
for the respondent, that the defendant was holding under 
consideration the plaintiff's proposition with respect to the 
quantity of the goods to be delivered, and by his letter of 
December twenty-fourth merely meant to make an inquiry 
as to whether plaintiff would be willing to give him until the 
fifth of January to pay the balance in case he should decide 
to accept the goods which the plaintiff was willing to agree 
unconditionally to sell. Good faith which is required in 
negotiating a contract, certainly will not permit such a con- 
struction of the letter as matter of law. It is to be borne 
in mind that the parties both supposed that they had made 
an agreement through the broker. The purpose of the corre- 
spondence was not to negotiate a new contract but to reduce 
to writing the contract already made; and, therefore, there 
is no ground for holding that the defendant merely desired 
to obtain information to enable him to decide whether or 
not to make a contract. Moreover, it clearly appears, I think, 
from defendant's letter of December twenty-sixth canceling 
the order, that this idea was not then in his mind, for the 
only ground he assigns for canceling the order is that he had 
not received a reply to his letter of the twenty-fourth and that 
the terms specified in the plaintiff's letter of the twenty-first 
were not in accordance with his offer of the twentieth. In 
view of the defendant's letter of December twenty-fourth, it 
may fairly be inferred that the only terms proposed by the 
plaintiff to which he did not assent were with respect to the 
time of payment. 

Plaintiff, by letter of December twenty-seventh, written 
on the receipt of the defendant's letter canceling the order, 
protested against the cancellation of the order and refused 
to assent thereto and informed the defendant that it was 



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Symington v. Haxton. 85 

App. Dlv.] First Department, February, 1021. 

holding the goods subject to his order. It appears that there 
was a rapid depreciation in the market price of these goods 
and that, I think, accounts for defendant's attempt to cancel 
the order. It follows that the judgment should be reversed 
and a new trial granted, with costs to the appellant to abide 
the event. 

Clarke, P. J., Smith, Page and Mekrell, JJ., concur. 

Judgment reversed and new trial ordered, with costs to 
appellant to abide event. 



DbNALD Symington and Others, Copartners, Doing Business 
under the Firm Name and Style of Symington, Hoffman 
& Co., Respondents, v. A. Strotjd Haxton, Appellant. 

First Department, February 4, 1921. 

Pleadings — action for breach of warranty under contract of sale — 
allegations in complaint as to nationality and non-residence of 
defendant immaterial — motion by defendant to strike out such 
allegations. 

In an action for breach of warranty under a contract of sale, .allegations in 
a separate paragraph of the complaint that " the defendant was and 
stall is a British subject and a non-resident of the State of New York " 
are immaterial and should be stricken out on motion by the defendant, 
although he is under no obligation either to admit or deny them, for he 
might be prejudiced by permitting such allegations to remain in the 
pleadings as they might be referred to by counsel during the trial or in 
some manner brought to the attention of the jury. 

Appeal by the defendant, A. Stroud Haxton, from an 
order of the Supreme Court, made at the New York Special 
Term and entered in the office of the clerk of the county 
of New York on the 24th day of November, 1920, denying 
his motion to strike from the complaint an allegation with 
respect to his residence and citizenship. 

Harry Bijur [Harold H. Herts with him on the brief; Bijur & 
Herts, attorneys], for the appellant. 

Laurence A. Sullivan [Harrington, Bigham & Englar, 
attorneys], for the respondents. 



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86 Symington v. Haxton. 

First Department, February, 1021. [Vol. 105. 

Laughlin, J.: 

This is an action to recover $100,000 for a breach of warranty 
under a contract between the parties by which certain personal 
property was sold and delivered by the defendant to the 
plaintiffs for $350,000. In paragraph 1 of the complaint it 
is alleged that the plaintiffs were copartners and the only 
allegations in paragraph 2 of the complaint are that the 
defendant was and still is a British subject and a non-resident 
of the State of New York. The defendant moved to strike 
out paragraph 2 and the motion was denied on the ground 
that all of the allegations of the paragraph are immaterial 
and that, therefore, the defendant is under no obligation either 
to admit or deny them and on that theory is not prejudiced. 
This we regard as bad practice. Doubtless the learned court 
was right in expressing an opinion that the defendant is not 
obliged to answer these allegations; but he is entitled to have 
such immaterial allegations stricken out and should not be 
subjected to the risk of determining at his peril whether or 
not they may be deemed material or immaterial by the trial 
court and if deemed material not denied or whether or not 
he may be prejudiced thereby. Moreover, it is perfectly plain 
that these allegations, which are set forth not inadvertently 
but in a special paragraph were inserted in the complaint for 
an ulterior purpose and in the hope that the plaintiffs may 
obtain some undue benefit or advantage thereby through 
possible prejudice or bias on the part of one or more jurors. 
Since the pleadings are before the court without being formally 
offered in evidence, it is manifest that the defendant might 
be prejudiced by permitting such allegations to remain in 
the pleadings for they might be referred to by counsel during 
the trial or in some manner be brought to the attention of the 
jury. They have no bearing on the issues in the case and 
are wholly immaterial thereto and should, therefore, have been 
stricken out. (Howard v. Breitung, 172 App. Div. 749; Bul- 
ova v. Barnett, Inc., 193 id. 161.) It was no more proper to 
incorporate them in the complaint than to have specified 
the defendant's religion or lack of religion or to have incor- 
porated any other allegations calculated and intended to give 
plaintiffs undue benefit or advantage, not on the merits of 
their case, but through a possible prejudice that might be 



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Brown v. Blanche Reai/ty Co. 87 

App. Div.] First Department, February, 1931. 

aroused by such allegations. In Zobel Company v. Canals 
(188 App. Div. 231) we reversed a judgment on the ground 
that a question was asked with respect to the citizenship of 
a material witness for a party calculated and intended to 
convey the impression that the witness was a citizen of a 
country with which our country was at war. The order 
should, therefore, be reversed, with ten dollars costs and 
disbursements, and motion granted, with ten dollars costs. 

Clarke, P. J., Dowling, Page and Greenbaum, JJ., 
concur. 

Order reversed, with ten dollars costs and disbursements, 
and motion granted, with ten dollars costs. Motion to dismiss 
appeal denied. 



John Bkown, Respondent, v. Blanche Realty Company, 

Appellant. 

First Department, February 4, 1921. 

Master and servant — negligence — injury to janitor and superin- 
tendent from fall of dumbwaiter — when error to charge as to 
failure to furnish safe place to work and sound and suitable 
appliances — duty of employer not absolute. 

In an action by a janitor and superintendent against his employer for injuries 
sustained by the falling of a dumbwaiter caused by the breaking of the 
rope by which it was operated in which the only basis for liability shown 
by the evidence was negligence in failing to inspect and repair, it was 
error for the court to charge the jury that the defendant owed to the 
plaintiff the duty to furnish a safe place to work and sound and suitable 
appliances, for the first theory of liability was not applicable to the case 
and there was no evidence that the dumbwaiter was not properly con* 
structed originally or that tjie rope when furnished was not suitable 
for the purpose. 

Moreover, the court erroneously instructed the jury that the duty of the 
employer with respect to furnishing a safe place and sound and suitable 
appliances was absolute. 

Appeal by the defendant, Blanche Realty Company, from 
a judgment of the Supreme Court in favor of the plaintiff, 
entered in the office of the clerk of the county of New York 



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88 Brown v. Blanche Realty Co. 

First Department, February, 1921. [VoL 106. 

on the 1st day of March, 1920, upon the verdict of a jury for 
$4,500, and also from an order entered in said clerk's office 
on the 19th day of February, 1920, denying defendant's motion 
for a new trial made upon the minutes. 

Frank J. O'Neill of counsel [Barent L. Visscher with him 
on the brief], for the appellant. 

Milton Speiser of counsel [Joseph Speiser with him on the 
brief; Speiser & Speiser, attorneys], for the respondent. 

Laughlin, J.: 

Defendant owned the premises known as No. 17 West 
One Hundred and Thirty-sixth street, borough of Manhattan, 
New York, and the plaintiff was in his employ as janitor and 
superintendent thereof, and on the 5th day of August, 1914, 
while in the basement attempting to pull a dumbwaiter down for 
the purpose of collecting garbage, sustained injuries by the fall- 
ing of the dumbwaiter, and this action is brought to recover his 
damages. On a former trial plaintiff had a verdict, but this 
court reversed the judgment on the ground that he failed to 
show the cause of the accident. (184 App. Div. 33.) On that 
trial it was merely shown that the dumbwaiter stuck at the 
second floor and that the rope by which it was operated and 
from which was suspended a weight, was somewhat worn and 
frayed; but it did not appear that the rope broke or that the 
dumbwaiter was otherwise out of order than might be inferred 
from the mere fact that it stuck. On the new trial it was 
shown that the rope broke near the eye where it was attached 
to the weight and that it had been so worn before the accident 
that it was held only by a few strands; and also that the 
dumbwaiter ran in grooves or tracks and that at times it left 
the tracks or grooves and became stuck and that the defend- 
ant had notice thereof a sufficient length of time before 
the accident to enable it in the exercise of due diligence to 
make the necessary repairs before the accident and that it 
failed to perform its duty in that regard. A cause of action 
was shown and the recovery could be sustained were it not 
for an error in the charge to which an exception was duly 
taken by the defendant jvhich error the court was led to 
repeat by a request for instructions to the jury by one of the 



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Brown v. Blanche Realty Co. 89 

App. Dir.] First Department, February, 1921. 

'■ ■ ■ ^—^^— ■■ ■ ■■■^^^—^"^— ^■*— ^^^^^^"^^ ■ ■■ ■ ■'■■ ■ 

attorneys for the plaintiff. In the charge in chief the court 
instructed the jury that the plaintiff brought the action on 
the theory that as an employee of the defendant he did not 
receive the consideration to which he was entitled from the 
defendant by reason of his employment, and that the law 
of our State is clear " that an employer is bound to furnish 
certain materials when calling upon an employee to do 
certain work. In other words, the employer, the defendant, 
was required under our laws to have furnished the plaintiff 
a safe place, so that the work that he was engaged in could 
be done without injury to himself, the plaintiff." The court 
then stated the contentions of the respective parties and 
instructed the jury that the important question for them to 
determine was what was the condition of the dumbwaiter, 
and that if it merely slipped and the plaintiff was injured, 
defendant was not liable, and that the plaintiff's theory was 
that owing to age and the extent to which the rope had been 
used it was in such poor condition that it broke. The jury 
were then instructed that the defendant could only be held 
liable on the theory of actual or constructive notice of the 
condition claimed to exist, and further instructed with respect 
to what constituted actual and constructive notice, Counsel 
for the defendant duly excepted to that part of the charge 
in which the court stated " that the employer was required 
to have furnished a safe place to the plaintiff so that the 
work engaged in could be done without injury to himself." 
On the attention of the court being thus drawn to the charge, 
no modification of the charge was made. The last instructions 
given to the jury were in charging a request made by one of 
the attorneys for the plaintiff "that the master, namely, 
the defendant, owed to the plaintiff the duty to furnish safe 
place to work, sound and suitable appliances with which 
to work and is bound to inspect and examine these things 
from time to time and use ordinary care to discover and 
repair defects in them." Defendant likewise duly excepted 
to those instructions and they were left without any modifica- 
tion. Both the court and the attorney for the plaintiff thus 
injected into the case one theory of liability not applicable 
to the case and another on which there was no evidence. 
The doctrine of safe place plainly was inapplicable to these 



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90 People ex rel. Lentino v. Feser. 

First Department, February, 1921. [Vol. 195. 

facts; and there was no evidence that the dumbwaiter was 
not properly constructed originally or that the rope when 
furnished was not suitable for the purpose. The only basis 
for liability shown by the evidence was negligence in failing 
to inspect and repair. Moreover, the court thus erroneously 
instructed the jury that the duty of the employer with respect 
to furnishing a safe place and sound' and suitable appliances 
was absolute, whereas it is well settled that the duty in this 
regard is merely to exercise reasonable care. {Maue v. Erie 
R. R. Co., 198 N. Y. 221; Harley v. Buffalo Car Mfg. Co., 
142 id. 31 ; Quinlivan v. Buffalo, R. & P. R. Co., 52 App. Div. 
1; Smidt v. Buffalo Cold Storage Co., 158 id. 778.) 

It is to be regretted that in a simple action for negligence 
such as this, it becomes necessary to have a third trial, but we 
cannot say that these errors were not prejudicial to the defend- 
ant. It follows that the judgment and order should be 
reversed and a new trial granted, with costs to the appellant 
to abide the event. 

Clarke, P. J., Smith, Page and Merrell, JJ., concur. 

Judgment and order reversed and new trial ordered, with 
costs to appellant to abide event. 



The People of the State of New York ex rel. Elsa Lentino, 
Respondent, v. Charles G. Feser and Aida Feser, 
Appellants. 

First Department, February 4, 1921. 

Parent and child — habeas corpus proceeding by mother to secure 
possession of infant daughter dismissed — abandonment of 
child — validity of voluntary adoption procured without actual 
or constructive notice to parent — necessity for hearing on issue 
of abandonment. 

A habeas corpus proceeding by a mother to obtain the possession of her 
infant daughter should be dismissed and a voluntary adoption order pro- 
cured without actual or constructive notice to the relator should be sus- 
tained, where it appears that the relator voluntarily delivered her daughtei 
to the respondents on the understanding and agreement, evidenced by a. 
letter signed by her at a time when she was unable to properly care for 
the child, that they were to have the custody of the child and the right 



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People ex rel. Lentino v. Feser. 91 

App. Div.] First Department, February, 1921. 

to bring her up as their own; that thereafter the relator abandoned the 
child to the respondents, husband and wife, who are respectable people 
with sufficient financial ability to properly care for the child; and that 
the child's stepfather is a professional gambler now in a State prison and 
liable to be taken into custody on another charge at the expiration of his 
sentence. 
A parent who has not been heard on the issue of abandonment cannot be 
concluded by an ex parte determination and must be afforded a hearing 
thereon, either by direct application to the judge who made the order of 
adoption or, as in this case, in a habeas corpus proceeding. 

Appeal by the defendants, Charles G. Feser and another, 
from an order of the Supreme Court, made at the Bronx 
Special Term and entered in the office of the clerk of the county 
of Bronx on the 12th day of June, 1920, sustaining a writ 
of habeas corpus and awarding the custody of Louise Phillips, 
otherwise known as Marie Feser, who is five years of age, 
to the relator, and declaring null and void an order of the 
Surrogate's Court of Bronx county permitting the respondents 
to adopt said child and to have her care and custody. 

George M.. Curtis, Jr., of counsel [Curtis, Robson & CoUins, 
attorneys], for the appellants. 

John T. S. Wade of counsel [Leonard McGee, attorney], 
for the respondent. 

Laughlin, J.: 

The points presented by the appeal cohcern the right to 
the custody of the child as between the mother, who is the 
relator, and the respondents to whom she voluntarily delivered 
the child on the understanding and agreement, evidenced by 
a letter signed by her at a time when she was unable properly 
to care for the child, that they were to have the custody of 
the child and the right to bring her up as their own, the validity 
and effect of an order of adoption subsequently procured by 
them without actual or constructive notice to the mother, 
and whether it is for the best interests of the child to be 
left with the respondents to be brought up as theirs or to be 
returned to her mother. 

The relator married one Phillips on January 18, 1913. Two 
children were born the issue of that marriage, one, Herbert, on 
the 3d day of December, 1913, and Louise, with whom we are 



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92 People ex rel. Lentino v. Feser. 

First Department, February, 1921. [Vol. 196. 

concerned in this proceeding, on the 1st of July, 1915. Their 
father died on the 3d of August, 1915. On the 27th of Febru- 
ary, 1918, their mother married one Lentino, a gambler by pro- 
fession, who on the 12th of August, 1919, was duly convicted in 
the Court of General Sessions, New York comity, of the crime of 
having received stolen goods knowing them to have been stolen, 
for which he was sentenced to be imprisoned in a State prison 
for not less than one year and six months, nor more than three 
years, and when the order herein was made he was still serving 
his sentence. A bench warrant has been issued for his arrest 
under an indictment for grand larceny, under which he will 
probably be taken into custody at the expiration of his present 
sentence. If not, or when he obtains his liberty, the relator 
contemplates resuming marital relations with him. and bringing 
up her two children by the former marriage and another, 
a girl born on the 7th of April, 1919, the issue of her marriage 
with him, under his supervision and as members of his family. 
It appears that Louise for a period of about six weeks after 
her birth, during which time the relator was ill, was in the 
custody of the relator's mother. From June to September, 
1918, Louise, with the consent of her mother, was in the care 
of Mr. and Mrs. Burbank of Brooklyn. Mrs. Burbank died 
©n the 26th of September, 1918, and Louise was then returned 
to her mother and was afterwards under the care of a Miss 
Halbach, also known as Von Halbach, for a short time and 
was then, through the instrumentality of Miss Halbach, also 
known as Von Halbach, sent by the relator, who had become 
ill again, to the respondents on the 2d day of October, 1918, 
with whom and under whose care she has ever since remained 
at their apartment, No. 1326 Fulton avenue, in the borough of 
The Bronx. When the relator sent the child to the respond- 
ents there had been no interview between her and them 
and only indirect negotiations through Miss Halbach, also 
known as Von Halbach, from which the fair inference to be 
drawn from the evidence is that the respondents were led to 
believe that the relator was unable to provide a proper home 
for the child and that they would be permitted to bring her up 
as their own. About a week after the respondents received 
the child, one of them called on the relator, evidently with a 
view to obtaining her consent to the adoption of the child, but 



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People ex rel. Lentino v. Feseb. 93 

App. Div.] First Department, February, 1921. 

she was unwilling to give it. On the 26th of November, 1918, 
relator called at the respondents' apartment and dined with 
them and remained some hours thereafter and as the result of 
negotiations between them and her, Mr. Feser wrote on a type- 
writer a statement which the relator there signed, as follows: 

" New York, November 26, 1918. 
" I hereby consent to allow my daughter, Louise, to live 
with, and be brought up by Mr. and Mrs. Charles G. .Feser, 
1326 Fulton Avenue, Bronx, N. Y., as I do not love or care 
for her. „ (Signed) Mrs. ELSA LENTINO." 

Respondents and the mother of Mrs. Feser thereupon 
signed the paper as witnesses. The relator concedes that 
she signed this paper but she testified that, while there, she 
was given intoxicating drinks and was not in a state of mind 
fully to comprehend and understand it. That is controverted 
by the testimony of the respondents, which is also to the effect 
that they never had or served intoxicating drinks, and they 
are corroborated by other testimony. All of the testimony 
introduced on the hearing has been fully considered and we 
deem it sufficient to state our conclusion with respect thereto 
without setting it forth or discussing it in detail. It satis- 
factorily appears that the relator gave the respondents to 
understand that she was unable to provide for the child and 
was quite willing and desirous that they should retain the 
custody of the child and bring her up as their own, and that 
she voluntarily signed the paper with full knowledge of its 
contents after she had so agreed with them verbally. It does 
not appear that anything was then said with respect to their 
right formally to adopt the child; but the respondent Feser, 
who drew it, was a salesman of steel supplies and doubtless 
did not know the formal requirements, of the law. After that 
interview, the preponderance of the evidence shows that the 
relator abandoned the child to the respondents and never 
called to see the child or personally made any effort to see 
her. The relator claims to have called on the respondents 
thereafter and to have had telephonic conversations with 
them concerning the child, but that is controverted by them. 
It was understood at the time the paper was executed that 



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94 People ex bel. Lentino v. Feser. 



First Department, February, 1921. [Vol. 195. 

the relator was to be at liberty personally to call and see the 
child if she should so desire. The relator's brother at one 
time thereafter called on the respondents and expressed a 
desire to see the child but was not permitted so to do, and the 
respondent Feser wrote relator protesting against this as a 
violation of their understanding that only she was to see 
the child. After the paper was executed, the relator frequently 
changed her residence and resided alone with her child and 
children after the last child was born, and later on her brother 
lived with her. She had no means and earned nothing but 
dressed well and she and the children who were with her 
were supported solely by contributions from her brother and 
brothers-in-law. The relator stated in her traverse to the 
return that she. had been informed by her husband that he 
had inherited from his father about $30,000, which he expected 
to receive when released from prison in July, 1920, but on the 
hearing that was .not shown. 

On the 25th of June, 1919, respondents presented to the 
Surrogate's Court, Bronx county, a petition setting forth the 
time and circumstances under which they received the custody 
of the child; the signing of the paper under the date of 
November 26, 1918, by the relator and the circumstances 
under which she signed it; efforts made by them to ascertain 
the address of the relator; that the father of the child was 
dead; that the mother had abandoned her; their ability 
and willingness to provide for her and give her a home and 
proper care and attention as if she were their own, and praying 
that the child's name be changed to theirs and for an order 
of adoption. Respondents, with the child, appeared before 
the surrogate, and the court made an order reciting the material 
facts and that the consent and appearance of the mother 
were unnecessary because she had abandoned the child, and 
allowing the adoption of the child by the respondents by a 
formal adoption signed and proved to have been, executed 
by them and recited in the order. It satisfactorily appeared 
on the hearing that the respondents are husband and wife 
and have been during all the times in question; that they 
are respectable people and have sufficient financial ability 
properly to care for her and were willing and anxious so to 
do; that they are fond of the child and the child is fond of 



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People ex bel. Lentino v. Feseb. 95 

App. Div.J First Department, February, 1981. 

them and addresses the respondent Mrs. Feser as her mother 
and manifested affection for both respondents and did not 
recognize or remember the relator and would not go to her. 

This proceeding was instituted by a petition verified by 
the relator on the 15th of March, 1920, in which she states 
that she first learned of the order of adoption on the 23d day 
of September, 1919, and that she had no notice of the applica- 
tion therefor. Section 111 of the Domestic Relations Law 
(as amd. by Laws of 1913, chap. 569, and Laws of 1915, chap. 
352), so far as here material, requires the consent of a parent or 
surviving parent to the adoption, but expressly provides that the 
consent of a parent " who has abandoned the child " is unneces- 
ary. Section 110 (as amd. by Laws of 1917, chap. 149)* defines 
adoption as " the legal act whereby an adult takes a minor 
into the relation of child and thereby acquires the rights and 
incurs the responsibilities of parent in respect to such minor/' 
and provides, among other things, that an adult husband and 
his adult wife together may adopt a minor, pursuant to the 
provisions of the adoption article of the Domestic Relations 
Law, being article 7 thereof. The statute provides procedure 
for two kinds of adoption, namely, one for the adoption of 
indigent children from charitable institutions (Dom. Rel. Law, 
§§ 110, 115, as amd. by Laws of 1917, chap. 149, and 
Laws of 1918, chap. 280), and another for all other cases 
which are known as voluntary adoptions (Id. §§ 110, 112, as 
amd. by Laws of 1917, chap. 149, and Laws of 1916, chap. 
453). The proceedings in the case of a voluntary adoption, 
with which only we are concerned, are regulated by section 
112 of the Domestic Relations Law, which provides, if the 
child is under eighteen years of age, that the foster parent or 
parents, defined in section 110 as the person or persons who 
are to adopt, the person to be adopted, and all persons whose 
consent is necessary under section 111, must appear before 
the county judge or the surrogate and be examined unless an 
instrument " containing substantially the consents " required 
is presented and an agreement on the part of the foster parents 
for the adoption, signed by, among others, each person 
whose consent is required by section 111, duly acknowledged. 

* Since amd. by Laws of 1920, chap. 433.— [Rep. 

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96 People ex rel. Lentino v. Feser. 

First Department, February, 1921. [Vol. 195. 

If, therefore, the paper signed by the relator on the 26th of 
November, 1918, could be deemed substantially the consent 
required by the statute, it is manifest that the adoption order 
could not be sustained on that theory for it was not executed 
in the manner required by the statute. It thus appears that 
the statute authorizes an adoption without consent of the 
surviving parent, if such surviving parent has abandoned the 
minor child. The statute contains no express provisions 
requiring notice to the parent in order that he may be heard 
on the question of whether or not he has abandoned the 
child, but, manifestly, without such notice, either actual or 
constructive, an adjudication cannot be made that will be 
binding on the parent on that issue. (Matter of Livingston, 
151 App. Div. 1; People ex rel. Simpson Co. v. Kempner, 
154 id. 674; Stuart v. Palmer, 74 N. Y. 183; Modem Loan Co. 
v. Police Court, 12 Cal. App. 582; Matter of Johnston, 76 
Misc. Rep. 374.) In many instances it would be impracticable, 
if not impossible, to give notice of a hearing on such an 
adoption proceeding to a parent who has abandoned a child, 
for often the parents are unknown and their whereabouts 
is unknown, and since the duty devolves on the State to 
care for such children, it was competent for the Legislature 
to provide for their adoption without the consent of or notice 
to the parent, at least when such notice could not be given, on 
satisfactory proof of the facts which the Legislature deems 
sufficient. All the facts on which the Legislature dispensed 
with consent, except abandonment, are matters of record, which 
could not well be controverted, namely, that the parent had 
been deprived of his civil rights or divorced for adultery or 
cruelty, or adjudged insane or to be an habitual drunkard 
or duly adjudged to be deprived of the custody on account of 
cruelty or neglect. But a parent who has not been heard 
on the issue of such abandonment, which might have been 
controverted, cannot be concluded by the ex parte determina- 
tion and must be afforded a hearing thereon, either by direct 
application to the judge who made the order, or as here, in 
a habeas corpus proceeding. (Matter of Livingston, supra; 
Matter of Moore, 72 Misc. Rep. 644; Matter of Larson, 31 Hun, 
539; revd., on another point, 96 N. Y. 381; People ex rel 
Cornelius v. Callan, 69 Misc. Rep. 187; Matter of Antonopulos f 



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Roberts v. New York Lifb In&urakgh Oo. 97 

AppL Div.] First Department, February, 1981. 

171 App. Div. 659.) In United States Trust Co. v. Hoy 
(150 App. Div. 621), with respect to adoption from an institu- 
tion, it was held that the adoption order was valid and binding 
on the parent, who, however, in that case was deemed repre- 
sented by the institution which had notice and the adoption 
was as authorized in such cases and was not on the ground of 
abandonment by the parent. It is unnecessary to decide 
whether the relator's only remedy was an application to 
vacate the order of adoption — a point on which the views 
of the members of the court are not in accord — for all of the 
evidence has been taken and we are all of opinion thereon 
that the relator had abandoned the child prior to the making 
of the adoption order, and that being the fact, the adoption 
order should have been sustained and the proceeding dismissed. 
The delivery of the child to the relator pursuant to the order 
was stayed pending the appeal and the child is now in the 
custody of the respondents, where we think she properly 
belongs. 

It follows that the order should be reversed, but without 
costs, and the proceeding dismissed, without costs* 

Clabke, P. J., Smith, Page and Merrell, JJ., concur. 

Order reversed, without costs and proceeding dismissed, 
without costs. 



Mary F. Roberts, Appellant, v. -New York Life Insurance 
Company, Respondent. 

First Department, February 4, 1921. 

Vendor and purchaser — mechanics' liens filed between date of 
contract of purchase and date for closing constitute an incum- 
brance — right of purchaser to recover back payment on account 
of purchase price, where vendee refuses to remove such incum- 
brance and deed is to contain no covenant against incumbrances — 
necessity of aUegation and proof as to purchaser's readiness and 
willingness to perform. 

Mechanics' liens filed against premises between the date of a contract of 
sale and the date for closing, which were unsatisfied on the latter date, 
constitute an incumbrance entitling the purchaser to rescind and to 

An. Div.— Vol. CXCV. 7 



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98 Roberts v. New York Life Insurance Oo. 

First Department, February, 1021. [Vol 195. 

recover back a payment made on account of the purchase price pursuant 
to the terms of the contract, where it appears that there was to be no 
covenant against incumbrances in the deed, and that the vendor although 
able to remove said liens refused to grant an extension of the time for 
closing and insisted that the purchaser take title on the mere oral promise 
of its attorney that he would bond the liens. 

The obligations of the parties to an executory contract of purchase and 
sale are concurrent and dependent, and there can be no recovery of damages 
for the vendor's alleged breach, without an allegation in the complaint 
and proof upon the trial of the vendee's readiness and willingness to perform ; 
but a formal tender and demand by the vendee is unnecessary where the 
vendor in advance refuses to comply with the terms of the contract or 
where he has placed himself in a position where performance is impossible. 

Merrill, J., dissents, with opinion. 

Appeal by the plaintiff, Mary F. Roberts, from a judgment 
of the Supreme Court in favor of the defendant, entered in the 
office of the clerk of the county of New York on the 17th day 
of November, 1919, upon the verdict of a jury rendered by 
direction of the court, and also from an order entered in said 
clerk's office on the 23d day of October, 1919, denying plain- 
tiff's motion to set aside the verdict and for a new trial made 
upon the minutes. 

John S. Wise, Jr., for the appellant. 

Edward E. McCall of counsel [George W. Hvbbett, attorney], 
for the respondent. 

Page, J. : 

On January 2, 1917, William C. Roberts entered into a 
contract with the New York life Insurance Company for the 
purchase of the land and premises known as Madison Square 
Garden for the sum of $2,400,000, payable, $100,000 in cash 
upon signing the contract, $300,000 at the time and place 
of the delivery of the deed, and $2,000,000 by executing and 
delivering a bond and mortgage to secure payment of that sum 
on the 1st day of January, 1922. The New York Life Insur- 
ance Company agreed on its part to execute, acknowledge and 
deliver a proper deed, with covenants only against grantor's 
acts, for the conveying to Roberts or assigns the fee simple of 
the said premises, free from all incumbrances/except taxes, 
assessments and water rates which were payable after the date 
of the contract, and also subject to certain leases and book- 



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Roberts t/. New York Life Insurance Co. 99 

App. Div.] First Department, February, 1921. 

ings, a schedule of which was attached to the contract, and 
which deed was to be delivered on March 1, 1917, at twelve 
o'clock noon. The contract further provided: "And it is 
hereby expressly understood and agreed between the parties 
hereto that unless title shall be taken at the said time and 
place, or unless said time of closing shall be duly extended, then 
this contract, at the option of said party of the first part [the 
New York life Insurance Company], shall become void and 
the said payment of One hundred thousand ($100,000) dollars 
made to it shall be retained by it as liquidated damages. In 
case any valid defect to the title is found, and the same is 
rejected therefor by the purchaser, then this contract shall 
become void and the said sum of One hundred thousand 
($100,000) dollars shall be returned with interest." 

The contract provided that the purchaser was to be Roberts 
or a corporation to be thereafter formed. Such a corporation 
was formed and on February 3, 1917, Roberts assigned all 
his interest in the contract to the Garden Tower Corporation, 
in which one Paris E. Singer was interested. In order to pro- 
vide for the payment of the $300,000, Singer purposed to secure 
a loan upon the collateral security of Singer Sewing Machine 
Company stock. Owing to the condition of the money market, 
he experienced difficulty in obtaining the loan upon satisfactory 
terms. Thereupon, through the influence of certain officers 
of the defendant, a loan for $300,000 was arranged with the 
New York Trust Company, but upon terms that Singer con- 
sidered unduly onerous. An application was made for an 
extension of the time of closing title until May first, and later, 
if that was impossible, until April first. One of the vice- 
presidents of the defendant, on declining to grant this extension, 
said that the purchasers would either take title at twelve 
o'clock noon on March first, " or off go their heads," and 
" furthermore, when we cut off their heads we will cut it off 
close up to the shoulders." Between the date of the contract 
and the date for closing, mechanics' liens were filed against the 
premises, one on January 25, 1917, for $1,337.80, and one on 
February 27, 1917, for $1,199.29, which were unsatisfied on 
March first. When the parties met to close title, these out- 
standing liens were called to the attention of the attorney for 
the defendant, and it was suggested that a few days' adjourn- 



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100 Kobkrts v. New York Life Insurance Co. 

First Department, February, 1921. [Vol. 195. 

ment be taken to enable the defendant to clear the title. 
The defendant's attorney said that he had no authority to 
grant any adjournment, that he could bond those liens in an 
hour, and insisted on the Garden Tower Corporation then and 
there taking title. He tendered the deed duly executed and 
the bond and mortgage prepared for execution, and demanded 
performance on the part of the corporation. Thereupon the 
attorney for the corporation refused the tender on the ground 
that the property was not free and clear of all incumbrances 
except those specified in the contract, and demanded the 
return of the $100,000. 

The Garden Tower Corporation assigned its claim under 
said contract to plaintiff, and this action was commenced to 
recover the $100,000 with interest. The defendant rested 
upon plaintiff's case, and the court directed a verdict for the 
defendant. The grounds for this decision were stated to be: 
(1) That the mechanics' liens wer^ incumbrances which it was 
in the power of the vendor to remove, and did not operate as 
a breach of defendant's contract; (2) that there could be no 
recovery of damages for defendant's alleged breach without 
an allegation in the complaint and proof on the trial of the 
vendee's readiness and willingness to perform. 

(1) It cannot be controverted that these mechanics' liens 
were. incumbrances which were not provided for in the contract, 
and furthermore, that the defendant had the ability to remove 
them, but did not do so. It stood on its right to tender a 
deed of the property thus incumbered. The attorney for 
the defendant stated he. would give his word that he would 
bond them. He, however, refused to grant an adjournment for 
the purpose of allowing the title to be cleared. Time was by 
its terms made of the essence of the contract unless an adjourn- 
ment should be granted, and the defendant had, by its insist- 
ence on an immediate closing and its repeated refusal of 
requests for an adjournment, made the very hour of the day 
essential to its performance. There was not even the sug- 
gestion that the purchaser could retain a sufficient sum from 
the purchase money as a protection against these liens. It 
is to be borne in mind that there was to be no covenant against 
incumbrances in the deed. The defendant insisted on the 
vendee giving up its contract right, for the contract would 



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Roberts v. New York Life Insurance Co. 101 

App. Div.] First Department, February, 1991. 

be merged in the deed (Murdoch v. Gilchrist, 52 N. Y. 242, 
246; Schoonmaker v. Hoyt, 148 id. 425, 429), and accepting 
the mere oral promise of the attorney that he would bond the 
liens. In Higgws v. Eagleton (155 N. Y. 466), relied upon 
by the respondent, the objections raised at the time of closing 
were unfounded, but the trial court held that by reason of the 
existence of a mortgage upon the adjoining property, which 
had an easement because the beams rested in the wall of the 
premises to be conveyed, the vendor was unable to give a valid 
release. The Court of Appeals held that this objection was 
not made upon the law day; had it been, the vendor could 
have procured a prqper release; and said (p. 472) : " In this 
contract there was no express stipulation making prompt 
performance, or performance upon the day named, any part 
of the substance of the agreement. So that, manifestly, time 
was not of the essence of the contract." 

In the instant case the objection was raised upon the law 
day, and demand made that the incumbrances be removed, and 
an offer made to adjourn the closing to permit the defendant 
to clear the title, all of which it refused to do. 

(2) It is a well-settled rule, as stated by the learned trial 
justice, that the obligations of the parties to an executory 
contract of purchase and sale are concurrent and dependent, 
and there can be no recovery of damages for the vendor's 
alleged breach without an allegation in the complaint and 
proof upon the trial of the vendee's readiness and willingness 
to perform. The exception to the rule is equally well settled 
and is stated in the cases relied upon by the court and by 
respondent's counsel, that a formal tender and demand by 
the vendee is unnecessary where the vendor in advance refuses 
to comply with the terms of the contract, or where he has 
placed himself in a position where performance is impossible. 
(Ziehen v. Smith, 148 N. Y. 558, 561,1 and cases cited 562; 
Vandegrift v. Cowles Engineering Co., 161 id. 435, 443.) In 
Morange v. Morris (3 Keyes, 48), cited with approval in Hartley 
v. James (50 N. Y. 38, 44), the property was incumbered by 
the lien of certain taxes and assessments. The court said: 
" By his agreement he was not only to convey a title in fee 
simple, but he was to convey and assure it free from all encum- 
brances except as therein specified, and the encumbrances 



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102 Boberts v. New York Life Insurance Oo. 

First Department, February, 1921. [VoL 1ML 

referred to were not within the exception. The existence of the 
encumbrances, at the time fixed in the agreement for the execu- 
tion and delivery of a deed, was a breach of the agreement on his 
part, which put it out of his power to perform, and excused 
the plaintiff from tendering payment. * * * The act of 
conveying the premises free from all encumbrances, was to be 
concurrent with that of the payment of the purchase money. 
The plaintiff was under no obligation to pay his money to the 
vendor, and trust to a remedy by action for damages in case 
the vendor failed to remove the encumbrances." The general 
language of this case has been somewhat limited and the case 
has been distinguished from others, but there is nothing either 
in the limitation or distinction- that impairs the application of 
the principle on which the case was decided to the instant 
case, in which the vendor refused to remove the incumbrances 
and insisted on tendering a deed of the property incumbered, 
which if accepted with knowledge of the liens would leave the 
vendee no right to damages because the deed did not contain 
a warranty against incumbrances. The instant action was not 
brought to recover damages for the breach of the contract, but 
to recover back a payment made on account of the purchase 
price, on the ground that, as the vendor was not ready at the 
time appointed to convey a title to the premises free from 
incumbrances, and refused on demand to clear the title, the 
vendee had exercised his right to rescind and reclaim what he 
had paid. (Bigler v. Morgan, 77 N. Y. 312, 318.) There is 
no allegation of damage by way of legal expenses incurred. 
All that is demanded in the complaint is the $100,000, paid on 
account of the purchase price at the time the contract was 
signed. 

The judgment and order should be reversed, with costs, 
and judgment ordered for the plaintiff for $100,000, with 
interest from the 2d day of January, 1917, with costs. 

Clarke, P. J., Laughlin and Smith, JJ., concur; Merrell, 
J., dissents. 

I Merrell, J. (dissenting) : 

~~ This appeal is by the plaintiff, Mary F. Roberts, from a 
judgment in favor of the defendant, New York Life Insurance 
Company, entered upon the verdict in favor of said defendant 



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Eobbbts v. New York Life Insurance Co. 103 

App. Dir.] First Department, February, 1921. 

directed by the court at Trial Term. The plaintiff also appeals 
from the order denying her motion to set aside the verdict 
and for a new trial. 

The action is brought to recover the sum of $100,000 and 
interest, which sum was paid by the plaintiff's assignor upon 
the contract of sale upon its execution on January 2, 1917. 
The contract was between the defendant and one William C. 
Roberts, and by the terms of the contract in consideration of 
the sum of $2,400,000 to be Jully paid as in the oontract 
provided, the said defendant agreed to sell and convey to the 
said William C. Roberts, plaintiff's predecessor, the Madison 
Square Garden property. Under the terms of the contract the 
said sum of $100,000 was to be paid upon the execution thereof, 
the sum of $300,000 was to be paid thereafter and on the 1st 
day of March, 1917, which was the time the defendant was to 
execute, acknowledge and deliver to the grantee a proper deed 
with covenants against the grantor's acts for the conveying to 
said Roberts or his assigns the fee simple of said premises free 
of incumbrances, except taxes, assessments and water rates 
payable after the date of the contract, and subject also to 
certain bookings and leases then outstanding against the 
property. The final payment of $300,000 was to be made and 
the deed delivered at the office of George W. Hubbell at 346 
Broadway, New York city, and it was further agreed that 
upon the payment of said $300,000 on March 1, 1917, the 
grantee should execute and deliver to the defendant a purchase- 
money bond and mortgage upon the property to secure the 
balance of the purchase price of $2,000,000. The contract 
also contained the following provision: " In case any valid 
defect to the title is found, and the same is rejected therefor 
by the purchaser, then this contract shall become void, and 
the said sum of One hundred thousand ($100,000) dollars 
shall be returned with interest." 

Subsequent to the execution of the said contract it was 
first assigned with all rights of the grantee thereunder by 
said William C. Roberts to the Garden Tower Corporation, 
and thereafter the said contract, together with all rights 
accruing to the grantee and his assignee thereunder was duly 
assigned and transferred by the Garden Tower Corporation to 
the plaintiff, Mary F. Roberts. 



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104 Roberts v. New York Life Insurance Co. 



First Department, February, 1921. [Vol. 1«5. 

It is the claim of the plaintiff that upon the 1st day of March, 
1917, the date upon which the contract was to be performed 
by the payment of the $300,000 by the grantee, the execution 
and delivery of the deed of the property by the defendant to 
the said grantee and his execution and delivery of the pur- 
chase-money bond and mortgage to the grantor to secure the 
balance of the purchase money of $2,000,000, the grantor 
was unable to furnish the grantee with a valid title to said 
property and that by reason thereof the grantee rejected the 
title and deed then and there tendered by the grantor. It is 
the claim of the grantee and the plaintiff herein that there 
were outstanding upon sakl property upon the law day when 
the parties met to fulfill said contract, two mechanics' liens, 
both of which were filed subsequently to the execution of said 
contract. These liens aggregated in amount a little more than 
$2,500, and had been filed by contractors who had furnished 
lumber and materials to one Grundy holding a lease of a part 
of said premises and which was used in the erection of a skating 
rink therein for said tenant. It was claimed by the represent- 
atives of the assignee of the grantee under said contract at 
the time and place where said contract was to be performed,, 
that said liens constituted a valid defect in the title of the New 
York Life Insurance Company, and that by reason thereof 
the title offered by* the said company was rejected by the 
representatives of the grantee. 

The court at the close of the plaintiff's case upon the trial 
directed the jury to return a verdict in favor of the defend- 
ant. A motion was made to set aside the verdict of the 
jury and for a new trial, which was denied by the court. No 
tender of performance was made by the grantee upon the 
rejection of title, nor did the grantee demand that the insurance 
company perform the contract on its part by delivering a 
deed of the property conveying title thereto free of 
incumbrances. 

It appears from the opinion of the trial court that the jury 
was directed to find for the defendant upon the ground that 
the plaintiff had failed to show a tender of performance on 
the part of the grantee, and a demand of the grantor that it 
perform said contract on its part, which the court held was a 
condition precedent to bringing suit to recover back the 



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Roberts v. New York Life Insurance Oa 105 

App. Biv.] First Department, February, 1921. 

assignee's money paid at the time of the execution of the 
contract. 

I think the reasons stated by the trial court for directing a 
verdict in defendant's favor are sound, and that under the 
authorities it was necessary for the plaintiff, before bringing 
suit, to prove a tender of performance on the part of the grantee 
and a demand that the grantor deliver the deed provided for 
by the contract. 

Under the precise terms of this contract I do not think that 
the existence of the two mechanics' liens upon the property 
covered by the contract upon the law day thereof was a 
" valid defect to the title," The provision of the contract 
with reference to the recovery of the assignee's money is that 
" In case any valid defect to the title is found, and the same is 
rejected therefor by the purchaser, then this contract shall 
become void, and the said sum of One hundred thousand 
($100,000) dollars shall be returned with interest." 

The law seems reasonably well settled that the existence of 
a mechanic's lien* upon property does not create a defect in 
the title thereto. (Raben v. Rimikoff, 95 App. Div. 68; March 
v. Marasco, 165 id. 348.) 

Raben v. Rimikoff (supra) arose in the Second Department 
and was to recover, as in the case at bar, moneys paid to the 
vendor upon the execution of the contract. .Mr. Justice Willard 
Bartlett, in delivering the unanimous opinion of the court 
in that case, among other things, said: " It appeared that 
there was a mortgage of $600 upon the land, payable on 
demand, which was not mentioned in the contract. If the 
vendor had then paid this mortgage, or tendered to the vendee 
an amount sufficient for its payment, he might have obviated 
the objection. He did neither, however. The mere exist- 
ence on the day when the title is to be closed of an incum- 
brance on the property to be conveyed, which it is within the 
power of the vendor to remove, does not constitute a breach of 
the contract (Higgins v. Eagleton, 155 N. Y. 466), but if the 
vendee then make a tender and demand of performance, and the 
vendor fails to remove the incumbrance or provide for its 
removal to the satisfaction of the vendee, the latter may 
maintain an action to recover the money paid on the agree- 
ment." (Italics are the writer's.) 



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106 Eobebts v. New York Life Insurance Co. 

First Department, February, 1921. [Vol 195. 

The evidence in the case at bar shows that no tender of 
performance was made on the part of the grantee, nor did 
the grantee demand performance on the part of the insurance 
company. Indeed, it appears that upon the law day, March 
1, 1917, after the attorney for the assignee of the grantee under 
the contract had made repeated requests for an adjournment 
in order to secure the necessary moneys to make up the 
$300,000 then payable, aD of which efforts were attended by 
failure, as a last resort the attorney spoke of the two mechanics' 
hens resting against the property. It appears that the insur- 
ance company and its attorney were surprised at the informa- 
tion of the existence of such liens, and the attorney then stated 
that under the provisions of law the liens would be eliminated 
without delay, and the attorney for the insurance company 
gave his word that he would see that the property was relieved 
of said liens at once if the grantee would accept title to the 
property and perform on his part. This the grantee refused 
to do, insisting on a further adjournment. 

The Lien Law provides for discharging mechanics' liens in 
several ways. (See § 19, as amd. by Laws of 1916, chap. 
507;* Id. § 20.) They may be discharged by payment to the 
lienor of the amount of his hen and discharge of the same, 
or may be discharged by executing a bond with proper sureties 
and in an amount approved by the court. Before action is 
brought upon the hens they may be discharged by payment 
into court of the amount of the lien with interest. Thus it 
would seem that it was within the power of the insurance 
company on the law day itself to have gotten rid of these liens 
and relieved the property of incumbrances by reason thereof. 
But even assuming that the existence of the liens constituted a 
" valid defect " to the title of the property, it is entirely 
clear from the evidence that the title was not rejected by 
reason of such defect. The claim that the property was 
incumbered by hens made by counsel for the grantee after 
repeated failures to secure a continuance in order that the 
grantee might raise the money to make payment of the $300,000 
was, I think, a mere subterfuge to enable the grantee to avoid 
performance of the contract. I do not think there was any 

* Since amd. by Laws of 1920, chap. 373.— [Rep. 

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Roberts v. New York Life Insurance Co. 107 

App. Div.] First Department, February, 1901. 

rejection of the title of the property in good faith. As pointed 
out by the trial justice, there were too many ways in which 
these two small liens, aggregating a little more than $2,500, in 
this stupendous deal involving $2,400,000, could have been dis- 
charged, and whereby the purchaser might have been amply 
protected. Not only could the liens have been discharged 
as suggested and promised by the solicitor for the insurance 
company, but the amount thereof could easily have been with- 
1 held by the grantee from the purchase price or pro tanto the 
purchase-money mortgage might have been reduced in amount. 

But even assuming that the liens constituted an invalidity 
of title, and that the grantee rejected the same by reason 
thereof, under the authorities I do not think the grantee could 
recover the $100,000 paid upon the execution of the contract, 
except upon tender of performance on the part of the grantee 
and a demand of the grantor of performance of the contract 
on its part. (McCammon v. Kaiser, 218 N. Y. 46; Ziehen v. 
Smith, 148 id. 558; Higgins v. Eagkhm, 155 id. 466.) 

Judge O'Brien said, in .Ziehen v. Smith (supra): "The 
contract is not broken by the mere fact of the existence on the 
day of performance of some lien or incumbrance which it is in 
the power of the vendor to remove." And, further: " It is 
not alleged or claimed that the plaintiff on that day, or at 
any other time, offered to perform on his part or demanded 
performance on the part of the defendant, * * *. It is, 
no doubt, the general rule that in order to entitle a party to 
recover damages for the breach of an executory contract of 
this character he must show performance or tender of perform- 
ance on his part." 

Had the assignee of the grantee in the case at bar tendered 
to the insurance company upon the law day performance on 
the part of said grantee of said contract, tendering the $300,000 
then due upon said purchase price, and had said assignee 
then demanded the deed from the insurance company in 
accordance with the terms of the contract, then the insur- 
ance company would have been required to act, and on failure 
to furnish such deed of the property free from incumbrances 
an action would lie on the part of said assignee to recover 
the earnest money paid upon the execution of the contract. 

J think there can be no question but that the incumbrance, 



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108 Culhane v. Economical Garage, Inc. 

First Department, February, 1081. [Vol. 196. 

such as it was, upon the property, was one which the insur- 
ance company had it within its power to remove at once. 
Several different courses to effect such removal were open to 
it, the adoption of either of which would have enabled it to 
have performed the contract. The payment of the $300,000 
and the transfer of title and the execution and delivery of 
the purchase-money mortgage were all concurrent acts, each 
dependent upon the other. In the absence of tender of per- 
formance on the part of the assignee of the grantee and a 
demand of performance on the part of the grantor, I think no 
foundation lies either for recovery of damages for failure to 
perform or to recover back the part of the purchase price 
paid upon the execution of the contract, and which by the 
terms of the contract it was agreed should be regarded as 
liquidated damages, if the grantee failed to perform. 

I think the trial court properly directed a verdict herein in 
favor of the defendant, and that the judgment entered thereon 
should be affirmed, with cost&J 

Judgment and order reversed, with costs, and judgment 
ordered for plaintiff for $100,000, with interest from January 
2, 1917, with costs. Settle order on notice. : : 



Nora Culhane, as Administratrix, etc., of William F. 
Culbane, Deceased, Appellant, v. Economical Garage, 
Inc., Respondent, Impleaded with Francis R. Mayer and 
Michael F. Day, Defendants. 

First Department, February 4, 1921. 

Workmen's Compensation Law — complaint in action for wrongful 
death of servant stating cause of action for injury arising out of 
and in course of employment — failure to allege non-compliance 
with Workmen's Compensation Law — demurrer sustained — 
election of plaintiff to proceed under Workmen's Compensation 
Law matter of defense — Workmen's Compensation Law consti- 
tutional — plaintiff permitted to amend complaint. 

A complaint in an action for the death of an employee which shows that the 
injury arose out of and in the course of the decedent's employ ment, 
within the meaning of the Workmen's Compensation Law, but which does 



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CXJI^HANIE V. ECONOMICAL GARAGE, INC. 109 



) 



App. Div.l First Department, February, 1IKU. 

not allege that the defendant failed to comply with said law, is demurrable 
on the ground that it does not state a eause of action. 
Tie fact that the plaintiff sought a remedy under the Workmen's Compensa- 
tion Law before instituting the present action is a matter of defense that 
is not presented by a demurrer to the complaint. 
The Workmen's Compensation Law is constitutional, and, furthermore, 
there can be no question of the power of the Legislature to take away the 
statutory remedy for a death claim and rubstitute therefor another remedy. 
The plaintiff, however, should be afforded an opportunity to amend the 
complaint, if possible, so as to state a cause of action not arising out of 
and in the course of the decedent's employment or by alleging that the 
defendant failed to comply with the Workmen's Compensation Law. 

Appeal by the plaintiff, Nora Culhane* as administratrix, 
from an order of the Supreme Court, made at the New York 
Special Term and entered in the office of the clerk of the county 
of New York on the 12th day of April, 1920, sustaining defend- 
ant's demurrer to the complaint, and also from the judgment 
entered thereon on the 26th day of April, 1920, dismissing the 
complaint. 

The issue herein was brought on and tried as a contested 
motion under section 976 of the Code of Civil Procedure. 

WUUam Phlippeau of counsel [Simpson & Simpson, attor- 
neys!, f<> r the appellant. 

Walter L. Glenney of counsel [Bertrand L. Pettigrew, attorney], 
for the respondent. 

Laughlin, J.: 

This is a statutory action (Code Civ. Proc. § 1902 et seq.) 

to recover for the death of plaintiff's intestate who was 

employed by the defendant company to wash cars in its 

garage in the borough of Manhattan, New York. It is 

alleged that the defendant Mayer had a contract with the 

defendant company for the storage of his automobile at. the 

garage; that one Rhine was the superintendent or manager 

of the garage and the company also employed defendant 

Day as foreman; that both Rhine and Day were acting 

with and had superintendence over the decedent; that on 

the 18th day of October, 1918, a loaded Colt's automatic 

pistol was negligently left concealed by the defendant Mayer 

or his chauffeur in his car at the garage; that he owned it, 

but had no permit or license to have it; that on said da;> 



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110 Oulhane v. Economical Oarage, Inc. 



First Department, February, 1931. [Vol. 195. 

the defendant Mayer telephoned said Rhine to take the 
pistol from his car and unload it and keep it until he or his 
representative called for it; that Rhine thereupon ordered 
the defendant Day to obtain the pistol and to unload it in 
his presence and that Day attempted so to do, but negligently 
and unlawfully and with reckless disregard for the safety 
of the decedent and others lawfully on the premises and in 
the garage failed to remove all of the loaded cartridges and 
negligently failed to safeguard the pistol and to put it away 
in a proper place of safety; that on said day decedent while 
in the garage in the performance of his duties was ordered 
and commanded by Day, who was his foreman, acting with 
and having superintendence over him, to come into the office 
of the garage and the decedent obeyed the command and 
upon his arriving in the office, Day, within the scope of his 
employment and authority, commanded the decedent to take 
the pistol and to deliver it to the defendant Mayer or to his 
representative when called for, and while in the act of so order- 
ing and commanding the decedent in regard to the return of the 
pistol and while the pistol was in defendant Day's hand, and 
by reason of his negligent and unlawful conduct in handling 
and caring for it, without warning to the decedent, a bullet 
was discharged from the chamber of the pistol into his body 
causing his death. 

The theory upon which the demurrer was interposed is 
that the complaint states a cause of action arising out of and 
in the course of the employment of the decedent in a hazardous 
employment enumerated in group 41 of section 2 of the Work- 
men's Compensation Law (as amd. by Laws of 1916, chap. 622, 
and Laws of 1917, chap. 705) for which a remedy is afforded by 
that law. In such case it is well settled that no action can be 
maintained unless it is alleged that the employer failed to comply 
with the statute with respect to insurance and that where the 
statute gives a remedy it is exclusive provided the employer 
has complied therewith. (NuUe v. Hardman, Peck & Co., 185 
App. Div. 351 ; Matter of Moore v. Lehigh Valley R. R. Co., 
169 id. 177; Pierson v. Interborough Rapid Transit Co., 184 
id. 678; Matter of Heitz v. Ruppert, 218 N. Y. 148; Matter 
of Daly v. Bates & Roberts, 224 id. 126.) There is no allegation 
in the complaint that the garage company failed to comply 



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Culhane v. Economical Gakagb, Inc. Ill 

App. Div.] First Department, February, 1921. 

with the Workmen's Compensation Law. The complaint, 
therefore, fails to state a cause of action. 

Counsel for appellant states, and respondent concedes, that 
a claim was made under the Workmen's Compensation Law 
and allowed, but that the decision of the Commission was 
reversed and the claim dismissed by the Appellate Division, 
and Culhane v. Ecanomiccd Garage Co/(188 App. Div. 1) is cited 
as showing the facts. It therein appears that the evidence 
before the Commission showed that neither Day nor the 
decedent was at the time the pistol was discharged acting 
within the scope of his employment. The opinion of the 
Appellate Division shows that the foreman called the decedent 
into the office, not to take and deliver the revolver to the 
owner as here alleged, but to look at it as a matter of curiosity, 
and for that purpose took it from a drawer in which it had 
been placed to hold it for the owner, and that as Day was about 
to hand it to the decedent to examine it, it was discharged. 
Counsel for the plaintiff says that his client is being driven 
from pillar to post without finding any remedy anywhere; 
but the difficulty is not with the law but with the theory 
of the claimant and the proof offered before the Commission 
or with the allegations here made, which are diametrically 
opposed thereto. Before the Commission it was shown that 
the accident which resulted in the decedent's death did not 
arise out of and in the course of his employment, while here 
it is alleged that it did. If the facts are as alleged in the 
complaint it is quite clear that there was a remedy under 
the Workmen's Compensation Law. If through inadvertence 
or excusable neglect plaintiff failed to show the material 
facts in presenting her claim to the Commission, doubtless the 
Appellate Division would, on a proper application, reconsider 
the dismissal of her claim and remit it to the Commission 
unless the Commission itself is authorized to reopen the 
hearing, as to which it is unnecessary for us to decide. We 
can only decide that on the facts here alleged plaintiff had a 
remedy under the statute which is exclusive, unless the garage 
company failed to comply with the statute, which is not 
alleged. 

Counsel for respondent contends that this action is barred 
by plaintiff's election to seek a remedy under the statute, 



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112 Oulhanb v. Economical Garage, Inc. 

First Department, February, 1981. [Vol. 195. 

but that would be a matter of defense and is not presented 
by the demurrer; and moreover if plaintiff had an election 
that could only be for defendant's failure to comply with 
the statute, and that does not appear. (Pavia v. Petroleum 
Iron Works Co., 178 App. Div. 345; Crinieri v. Gross, 184 
id. 817.) 

Counsel for the appellant further contends that the Work- 
men's Compensation Law is unconstitutional; but it has been 
sustained as constitutional ( New York Central R. R. Co. v. While, 
243 U. S. 188; Matter of Jensen v. Southern Pacific Co., 215 
N. Y. 5.14; Matter of Walker v. Clyde Steamship Co., Id. 529), 
and this being a death claim for which there was no cause of 
action at common law, there can be no question with respect 
to the authority of the Legislature to take away the statutory 
remedy theretofore given and afford another or to withdraw 
the remedy altogether provided the statute operates alike on 
all similarly situated. (See Shanahan v. Monarch Engineering 
Co., 219 N. Y. 469; Skinniek v. Cloner Farms Co., 169 App. 
Div. 236.) Plaintiff, however, in the circumstances, should 
be afforded an opportunity to amend the complaint, if advised 
that the facts warrant the amendment, so as to state a cause 
of action not arising out of and in the course of decedent's 
employment or by alleging that the garage company failed 
to comply with the Workmen's Compensation Law, if that 
be the fact. 

It follows that the order should be modified by providing 
that it is made without prejudice to a motion by the plaintiff 
to vacate the order and judgment and serve an amended 
complaint, if she shall be so advised, and as thus modified 
affirmed, with costs. 

Clarke, P. J., Smith, Page and Mebrell, JJ., concur. 

Order modified as directed in opinion and as so modified, 
affirmed, with costs to respondent. 



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Drake v. National Motor Car & Vehicle Corp. 1 ] 3 

App. Div.] First Department, February, 19M. 



Della M. Drake, Respondent, v. National Motor Car 
and Vehicle Corporation, Appellant. 

First Department, February 4, 1921. 

Motor Tehicles — action against manufacturer for injuries alleged 
to have boon caused by defective construction — bill of particulars 
as to specific defects to be relied on — particulars as to experience 
of plaintiff in driving and exact time of accident — particulars as 
to place of accident, speed of car and method of driving. 

In an action by the owner of an automobile against the manufacturer to 
recover for injuries received by the plaintiff in an accident caused^ the . 
breaking of a part of the steering gear, the court should be liberaWn grant- 
ins; to the defendant a bill of particulars as to the defects '*** P v struotion 
or material which the plaintiff will rely on to estate and UnSBlo, 

The defendant is entitled ^ a bill of Pytfflkeof , Wttnot contain^ 
general allegations ^M*rj^} wffifUgSS' [ ^^^^^^^oSi^^A^^^e 
of the entire autofyjbile anc ^/hts parts aurTthe testin^rMWrwere 
intended to be lir l^ed by more specific allegations in a later paragraph 
confining the ndrivilnce to the steering apparatus, and if they were not 
intended to be \&g tiited to particularize with respect to them. 

The defendant is the ^°^> a ^ 80 * *° Particulars as to the parts of the steering 
apparatus alleg _# be worn and of insufficient size and as to the parts 
alleged to have . . omitted in the construction. 

The defendant is )m ^ e htitled to particulars as to the experience of the plain- 
tiff in driving he Ehobiles or the exact time of the accident since those 
questions can Ice oto bearing on the issues. 

But the defendac^Qi^dntitled to particulars as to the exact place where the 
accident nappe + the speed of the car at the time of the accident, and 
whether the pi f put on the foot brake or the emergency brake and 
whether she clr^ father of them was defective. 

Appeal by the defendant. National Motor Car and Vehicle 
Corporation, from an order of the Supreme Court, made at 
the New York Special Term and entered in the office of the 
clerk of the county of New York on the 30th day of November, 
1920, in so far as the same denies the defendant's motion 
for a bill of particulars with respect to matters specified 
in five subdivisions of the notice of motion. 
App. Div.— Vol. CXCV. 8 



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114 Drake v. National Motor Car <fc Vehicle Corp. 

First Department, February, 1921. [Vol. 195. 

Richard F. Weeks of counsel [Baldwin & Curtis, attorneys], 
for the appellant. 

Frank Sowers of counsel [Richards & Affeld, attorneys], 
for the respondent. 

Laughlin, J.: 

This is an action against a manufacturer of an automobile 
to recover for personal injuries alleged to have been sustained 
by the plaintiff, who purchased the automobile from a dealer 
to whom the defendant sold it, while operating the automobile 
at some point in the State of Indiana on the 29th day of 
August, 1918, alleged to have been caused by negligence in 
the .manufacture thereof and in failing to make proper tests 
' of cert&n of its parts and for damages to the automobile. 
The liaTy l y of the defendant is predicated on MacPherson v. 
Bv n?S v* 2 **" ' 217 N ' Y ' 882 ) *k d ^d** 1 authorities. 
*i>2Mn L^^ " ,w ^ J l tw o "P a ^/& er National roadster, 
wEbqf^jjjti&eg^^ manufacturing 

and selling. Plaintiff alleges tuat^P the ;, it >k 1918 defendant 
sold and defcrered the automobile to ( to Combs Motor 
Company, a dealer in autowipbiles in \frte cigton, D. C, 



from whom she purchased it on or abou t 



1918. In paragraph 4 she alleges thatch Iefendant was 



comoth of April, 



careless and negligent in the manuf actuti; ^ le automobile 
and failed to use due care in its constn&on** b,nd in testing 
the materials with which it was made ai re i by ithe materials 
and parts used in its construction and parM» 4re a in connection 
with the steering apparatus to be use** 64 '.] thiirfng were of 

inferior and unsuitable quality which c*? n , ,nd could not 

ums < 

stand the strain of the ordinary use to wlu^i the automobile 
was intended to be and was put; and in paragraph 5 that 
the defendant negligently and without proper care placed 
on the automobile steering apparatus which was improperly 
constructed and defective, " in that the parts connecting one 
of the steering arms of said automobile were worn and of 
insufficient size, and defendant was negligent, in that a spring, 
which was a necessary part of said steering apparatus and 
steering arm, was not placed therein, making such steering 
apparatus unsuitable and unsafe, liable to become useless 



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Drake v. National Motor Car & Vehicuj Corp. 1 15 

App. Div.] First Department, February, 1921. 

and to break, and said defect was not visible to open or casual 
inspection by the plaintiff." It is also alleged that during 
the month of August, 1918, plaintiff delivered the automobile 
to the defendant " for the purpose of complete overhauling, 
repair and examination - " and that the defendant undertook 
for a valuable consideration to completely overhaul and repair 
it and place it in first-class condition and thereafter and 
during the same month the defendant delivered it to the 
plaintiff, " alleging and warranting that the said machine had 
been carefully overhauled and repaired and was in first-class 
condition, and that in particular the steering apparatus, 
including steering arm and steering knuckle, and parts con- 
necting with the steering arm and wheel, were in first-class 
condition, whereas in truth and in fact the defendant negli- 
gently failed to discover the defects heretofore recited in said 
steering apparatus and failed to discover that a portion of 
said steering apparatus had become worn and unsafe, and 
that the spring, a necessary part thereof, was not contained 
therein, and that said steering apparatus was in a dangerous 
condition." It is further alleged that while the plaintiff was 
engaged in driving the automobile in the State of Indiana 
and proceeding therewith in a careful and proper manner, 
by reason of the defects and the negligence of the defendant 
thereinbefore recited, " the said steering apparatus became 
broken, disjointed and useless, and the plaintiff was unable 
to control the movements of said automobile, and without 
any negligence of the plaintiff in anywise thereto contributing 
the said automobile was violently precipitated against an 
embankment at the side of the road, violently throwing the 
plaintiff from said automobile to the ground," causing the 
injuries for which she seeks to recover. The affidavit of the 
chairman of the board of directors of the defendant shows 
that it is necessary for the defendant to have a verified bill 
of particulars as specified in the notice of motion, in order 
that the issues may be limited and that the defendant may 
know in advance of the trial the issues it will be called 
upon to meet and to enable it properly to prepare for trial 
and to avoid surprise. The order granted the motion for the 
particulars specified in subdivisions V, VII and VIII of the 
notice of motion and in all other respects denied it. 



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116 Drake y. National Motor Cab & Vehicle Cobp. 

First Department, February, 1921. [Vol. 196. 

It is manifest that in the enforcement of such a remedy 
against the manufacturer for an accident occurring bug after 
it has parted with the automobile, the court should be quite 
liberal in granting bills of particulars and that this may be 
done without prejudice to the plaintiff, for one who attributes 
such an accident to a defect in the manufacture of the auto- 
mobile or in the materials of which it was manufactured 
must be in a position through an inspection of an automobile 
by experts after the accident to point out precisely the defect- 
ive construction or the defect in the materials. It will be 
observed that the 4th paragraph of the complaint contains 
very general allegations charging negligence with respect to 
the manufacture of the entire automobile and all of its 
parts and the testing thereof and that the allegations of the 
5th paragraph are confined to negligence with respect to 
the steering apparatus. The purpose of the demand in the 
1st paragraph of the notice of motion is to ascertain whether 
the general allegations in the 4th paragraph are intended to 
be limited by the more specific allegations in the 5th. The 
object of the demand in the 2d paragraph is to have the 
plaintiff particularize with respect to the allegations of the 
4th paragraph if they are not intended to be limited by the 
5th. The object of the demands of the 3d is to have the 
plaintiff name the parts connecting one of the steering arms 
which it is alleged in the 5th paragraph were worn and of 
insufficient size; and the object of the demand in the 4th 
paragraph is to have the name of the spring which it is claimed 
was a necessary part of the steering apparatus and arm and 
not placed therein specified. We are of opinion that the 
defendant is entitled to a bill of particulars with respect to 
these matters as demanded. The demands of paragraph 6 
are too broad in many respects. Neither plaintiff's experience 
in driving automobiles nor the exact hour of the accident 
can have any bearing on the issues concerning the negligence 
with which the defendant is charged; but the defendant is 
entitled to know where the accident occurred by having the 
highway named and the vicinity given and to know the speed 
at which the automobile was traveling and whether plaintiff 
put on the foot brake or the emergency brake and whether 
she claims that either of them was out of order. 



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Duboff v. Haslan. 117 



Appu Div.] First Department, February, 1931. 

The order in so far as it is appealed from should, therefore, 
be reversed, with ten dollars costs and disbursements, and 
motion granted, with ten dollars costs, to the extent herein 
specified. 

Clarke, P. J., Dowling, Page and Greenbaum, JJ., 
concur. 

Order so far as appealed from reversed, with ten dollars 
costs and disbursements, and motion granted, with ten dollars 
costs, to the extent specified in opinion. 



Annie Dtjboff, Respondent, v. John J. Haslan, Individually 
and as Assistant Property Clerk of the Police Department 
of the City of New York, and Others, Defendants, Impleaded 
with G. Hinman Barrett, Individually and as Property 
Clerk of the Police Department of the City of New York, 
Appellant. 

First Department, February 4, 1921. 

Replevin — action against property clerk of police department of 
city of New York to recover property seised by police — Greater 
New York charter, sections 331-386, and Code of Criminal Pro- 
cedure, sections 686-690, not bar to action — liability of property 
clerk for refusal to deliver property — complaint examined and 
held to state cause of action. 

Property seized by the police of New York city at the time an arrest was 
made on the ground that it was stolen property and delivered to the prop- 
erty clerk of the police department, and not held or required as evidence, 
may be recovered in an action of replevin by the assignee of the person 
arrested after the conviction of said person on* a charge not involving 
the property seized, and the plaintiff is not limited to the procedure 
defined by sections 331-336 of the Greater New York charter and sections 
685-691 of the Code of Criminal Procedure to regain possession of the 
property. 

But it would require clear evidence of improper action on the part of the 
property clerk amounting to bad faith or improper motives to render him 
liable for not delivering such property to one claiming to be the ownor 
and entitled to the possession and not presenting satisfactory proof thereof, 
and for requiring an order of a magistrate as required by said statutory 



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118 Dubopp v. Haslan. 



First Department, February, 1021. [Vol. 195. 

provision* or a writ of replevin or other process of court or an adjudication 
of title in the claimant if his title be controverted, before surrendering the 
property thus coming to his possession. 

The complaint in an action against the property clerk of the New York 
city police department to recover property seized by the police and deliv- 
ered to the defendant's predecessor and by him delivered to the defendant 
examined, and held, to state facts sufficient to constitute a cause of action. 

t 

Appeal by the defendant, G. Hinman Barrett, individually 
and as property clerk, from an order of the Supreme Court, 
made at the New York Special Term and entered in the 
office of the clerk of the county of New York on the 8th day 
of July, 1920, granting plaintiffs motion for judgment on 
the pleadings consisting of the complaint and a demurrer 
thereto for insufficiency and denying his counter-motion for 
judgment on the pleadings. 

Edwin H. Updike, for the appellant. 

H. Lionel Kringel of counsel [Charles G. F. Wahle with him 
on the brief; Wahle & Kringel, attorneys], for the respondent. 

Laughlin, J.: 

This is an action on an assigned claim of the plaintiff's 
husband to recover certain specified items of jewelry, alleged 
to have been owned by him and to have been seized and 
taken from his place of business as a dealer in jewelry at 156 
Chrystie street in the borough of Manhattan, New York, 
by members of the police force of the city of New York as 
such officials on the 6th day of April, 1916, and on or about 
said date delivered by them into the possession, care and 
custody of the defendants Haslan as assistant property clerk 
and Barrett as property clerk of the police department, who 
it is alleged received and retained the property in their posses- 
sion and custody in their said respective official capacities 
and subsequently delivered it over to their successors in office. 
It is further alleged that entries were made as required by 
law in the books of the property clerk of the police department, 
identifying and describing the property, and that it was therein 
identified and described on voucher or schedule No. 6677 
as " being and constituting Items Nas. 1, 2, 4, 5, 6, 7, 8, 10, 
13, 31, 32 and 35," and remained so identified and described 



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Dubofp v, Haslan. 119 



▲PPl Dir.] First Department, February, 1991. 

thereafter until and including the 11th of January, 1918; 
that the seizure and removal of said property from the 
possession of the plaintiff's husband was wrongful and unlawful, 
and the property was received by the defendants Haslan and 
Barrett with knowledge and chargeable with knowledge that 
it had been so wrongfully and unlawfully seized without 
warrant or authority of law; that on the day the property 
was so seized the officers who seized it charged plaintiff's 
husband with the crime of criminally receiving stolen property, 
and he was indicted and on the 8th of May, 1916, convicted 
on the charge in the Court of General Sessions and sentenced 
to a term in State prison, but that none of the articles seized 
constituted any part of the articles for receiving which he 
was convicted or of the corpus delicti of the crime for which 
he was indicted and convicted; that after the conviction of 
plaintiff's husband neither defendant Haslan nor defendant 
Barrett had any claim to the property as against him or his 
assigns and on the 11th of May, 1916, for a valuable considera- 
tion, he duly assigned, transferred and set over unto the 
plaintiff all his right, title and interest in and to said property, 
and thereafter and on or about that date she informed said 
defendants of said assignment and that she was the owner 
of the property, and duly demanded of them and each of 
them as such assistant property clerk and property clerk 
that they and each of them deliver to her the possession 
of the property, but that they jointly and severally refused 
so to do, and that both of them continued to hold the posses- 
sion, care and custody of the property, and that Haslan in 
his official capacity continued to hold it until the 11th of 
January, 1917, and Barrett in his official capacity continued 
to hold it until the 31st of December, 1917. It is then alleged, 
inconsistently with the foregoing, that said Barrett duly 
resigned on the 31st of December, 1916, and ceased to be . 
such property clerk on January 1, 1917, and that Haslan 
duly resigned and ceased to be assistant property clerk on 
January 31, 1918. It is further alleged that the defendant 
Sunderman was assistant property clerk of said department 
from December 31, 1916, to and including January 11, 1917, 
and acted as property clerk betwe3n January 1 and January 11, 
1917, but ceased to act as such on or about the latter date; 



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120 Duboff v. Haslan. 



First Department, February, 1931. [Vol. 106. 

that on or about the 1st of January, 1917, defendants Barrett 
as property clerk and Haslan as assistant property clerk deliv- 
ered over said property to said Sunderman as acting property 
clerk, although they at that time knew and were chargeable 
with knowledge that the property was not lawfully in their 
possession and custody as -such officials, but was the property 
of the plaintiff and had been and was wrongfully withheld 
from her by them and each of them, and that Sunderman 
received the property from them with knowledge and charge- 
able with knowledge that it belonged to the plaintiff, who 
had duly demanded the return thereof, and that it had been 
and was wrongfully withheld from her; that from January 11, 
1917, to and including January 18, 1918, defendant Ringer 
was the duly appointed and acting property clerk of said 
department and on the latter date resigned; that on 
January 11, 1917, defendants Haslan and Sunderman as 
assistant property clerk and acting property clerk delivered 
said .property and the possession, care and custody thereof 
to defendant Ringer as property clerk with knowledge and 
chargeable with knowledge that it was not lawfully in their 
possession, care and custody but was the property of the 
plaintiff and had been wrongfully withheld from her by them 
and the defendant Barrett as aforesaid, and that she had 
duly demanded the return of it to her, and Ringer as property 
clerk received the property knowing that the plaintiff had 
made due demand for the return thereof to her and that she 
claimed to be and was the owner thereof; that from April 6, 
1916, until the assignment to the plaintiff, her husband was 
the only person who was or claimed to be the owner and who 
demanded the return of the property, and after the assignment 
plaintiff was the only person who claimed to be the owner and 
who demanded the return of the property; that the defendants 
jointly and severally took into their possession and kept in 
their possession, care and custody as alleged in the complaint, 
the said property with knowledge and chargeable with 
knowledge that it had been so wrongfully and unlawfully 
seized and taken from the possession of her husband, and that 
plaintiff has duly demanded of them and each of them -the 
return of the property and they and each of them have refused 
and continue to refuse to deliver the- property to her, and that 



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Duboff v. Haslan. 121 



App. Div.] First Department, February, 1021. 

with knowledge of the wrongful and unlawful seizure and 
taking of the property, they " acted together in continuity 
and in concert, wilfully and wrongfully to deprive " the. 
plaintiff of the property and of the use and benefit thereof, 
and have deprived her of the possession, use and benefit 
thereof, and that they have jointly and severally, wrongfully 
and unlawfully, retained and withheld the property from her 
and still continue so to do, and that the property is worth 
the sum of $7,399. Judgment is demanded against each of 
the defendants individually and in his official capacity as 
aforesaid, jointly and severally, adjudging that plaintiff is 
the owner and entitled to possession of the property, and 
that it be delivered to her forthwith, and in case possession 
thereof cannot be given, that she have judgment against the 
defendants jointly and severally both individually and in their 
respective official capacities for $7,399. The sole ground of 
the demurrer is that the complaint fails to state facts suffi- 
cient to constitute a cause of action against the appellant 
individually and as property clerk. 

Section 1689 of the Code of Civil Procedure, which is in 
article 1 of title 2 of chapter 14, relating to the recovery of 
chattels, provides that nothing in that title is to be so construed 
as to prevent the plaintiff from uniting in the same complaint 
two or more causes of action in any case specified in section 
484. Saidfeection 484 permits, among other things, the joinder 
of two or more causes of action brought to recover <l chattels, 
with or without damages for the taking or detention thereof." 
(See subd. 7.) Were it not for the official capacity in 
which the appellant received, held and delivered the property 
to his successor in office, it is quite clear that the allegations 
of the complaint would be sufficient to show a cause of action 
against him for the conversion of the property, but the action 
is not in conversion and is only for the recovery of the possession 
of the property or its value, and the recovery of its value is 
only demanded as alternate relief in the event that possession 
of the whole or any part of the property cannot be had. Any 
cause of action plaintiff may have had for conversion is, 
therefore, waived. If it appeared that the possession of the 
property had been taken from the appellant by due process 
of law, an action for the recovery of the possession thereof 



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122 Dubopf v. Haslan. 



First Department, February, 1921. [VoL 195. 

could not be maintained against him, but where, as here, it 
is alleged that with knowledge of the plaintiff's right to the 
possession of the property, he refused her demand for posses- 
sion and wrongfully retained possession and delivered posses- 
sion to his successor in office, unless protected by his office, 
he would still remain liable in an action to recover possession 
of the property, notwithstanding the fact that he has parted 
with possession; and that evidently is the theory on which 
the allegations with respect to his knowledge of plaintiff's 
rights, and wrongful refusal to recognize them and wrongful 
delivery of the property to another were inserted in the 
complaint, and not to afford the basis of an action for con* 
version. (Vogel v. Badcock, 1 Abb. Pr. 176; Sinnott v. 
Feioch, 165 N. Y. 444; Bamett v. Selling, 70 id. 492; Dunham v. 
Troy Union R. R. Co., 3 Keyes, 543.) The demurrer does 
not require a decision or the expression of an opinion as to 
whether causes of action have been improperly united. The 
complaint shows that all of the defendants, with the exception 
of Sunderman, have parted with all custody and possession 
and control of and over the property to their successors in 
office, and it is to be inferred that the property is still held 
by the property clerk or assistant property clerk of the police 
department and that possession thereof can be acquired by 
the plaintiff if entitled thereto. If is, however, stated in 
respondent's points that the property has been lo^ by theft, 
but that is not shown by the record. The learned counsel 
for the appellant contends that the presumption of law in 
favor of the legality of the acts of public officials is not over- 
come by the allegations of the complaint, and that the property 
having been seized by police officers and delivered to the 
property clerk of the police department and no court order 
having been obtained requiring the delivery of it to the 
plaintiff, appellant was not only warranted in withholding 
possession of the property, but it was his duty so to do and 
to deliver it to his successor when he resigned. The statutory 
provisions cited in support of the contention are sections 
331-333 of the Greater New York charter (Laws of 1901, chap. 
466) and sections 685-691 of the Code of Criminal Procedure. 
Section 331 provides for the appointment by the police com- 
missioner of some person as clerk to take charge of all property 



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Dubopf v. Haslan. 123 



App. Div.] First Department, February, 1921. 

alleged to have been stolen or embezzled and which is brought 
into the " police office," and all property taken from the person 
of a prisoner, and all property or money alleged or supposed to 
have been feloniously obtained, or which shall be lost or aban- 
doned and taken into the custody of any member of the police 
force in the city of New York, and which shall come into the 
custody of any criminal court or any magistrate or officer, and 
provides for the description and registration of such property in 
a book to be kept by the property clerk, which shall contain 
" the name of the owner or claimant if ascertained, the place 
where found, the name of the person from whom taken, with 
the general circumstances, the date of its receipt, the name of 
the officer recovering the same, a description thereof, the names 
of all claimants thereto, and any final disposition of such 
property or money." The statute further provides that the 
police commissioner may prescribe regulations in regard to 
the duties of the property clerk. (See, also, Laws of 1917, 
chap. 400, amdg. said § 331.) Doubtless, as contended by 
counsel for the appellant, it was the duty of the property 
clerk to receive the property in the first instance, but counsel 
for respondent argues that he had no right to retain it as 
against the demands of the lawful owner after the trial and 
conviction of the plaintiffs husband, which so far as may 
reasonably be inferred from the allegations of the complaint, 
removed any further necessity for retaining the property as 
evidence. 

Section 332 of the Greater New York charter provides 
that " Whenever property or money taken from any person 
arrested shall be alleged to have been feloniously obtained, 
or to be the proceeds of crime, and brought, with all ascertained 
claimants thereof, and the person arrested, before some 
magistrate for adjudication, and the magistrate shall be then 
and there satisfied from evidence that the person arrested 
is innocent of the offense alleged, and that the property 
rightfully belongs to him, then said magistrate may thereupon, 
in writing, order such property or money to be returned, and 
the property clerk, if he have it, to deliver such property 
or money to the accused person himself, and not to any 
attorney, agent or clerk of said accused person." Section 333 
provides that if any claim to the ownership of property or money 



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124 Dubopp v. Haslan. 



First Department, February, 1921. [Vol. 105. 



brought before a magistrate as provided in section 332 shall be 
made on oath by or in behalf of any one other than the person 
arrested, and the accused shall be held for trial or examination, 
the property or money shall remain in the custody of the 
property clerk until the discharge or conviction of the person 
accused " and until lawfully disposed of." Section 334 
provides, so far as here material, that all property or money 
taken on suspicion of having been feloniously obtained, or 
of being the proceeds of crime, and for which there is no 
other claimant than the person from whom it was taken, 
shall be transmitted as soon as practicable to the property 
clerk to be registered and advertised in the City Record for 
the benefit of all persons interested and for the information 
of the public " as to the amount and disposition of the property 
so taken into custody by the police." Section 335 provides 
that " If the property stolen or embezzled be not claimed by 
the owner, before the expiration of six months from the con- 
viction of a person for stealing or embezzling it, the officer 
having it in his custody must, on payment of the necessary 
expenses incurred in its preservation, deliver the same to the 
property clerk. The property so delivered to said property 
clerk, and all such other property, securities, moneys, things 
or choses in action, that shall remain in the custody of the 
property clerk for the period of six months without any lawful 
claimant thereto, after having been advertised in the City 
Record for the period of ten days, may be sold at public auction 
in a suitable room to be designated for such purpose, and the 
proceeds of such sale shall be paid into the police pension 
fund." The section forbids the delivery of property " to the 
property clerk or at the central office of the police department, 
except as provided by law." After the action was commenced 
section 335 was amended so as to insert a proviso with respect to 
certain property, but the proviso does not embrace such prop- 
erty as that here in question. (See Laws of 1920, chap. 734.) 
Section 336 provides that if property or money placed in the 
custody of the property clerk shall be desired as evidence in a 
police or other criminal court, it shall be delivered to an officer 
presenting an order of the court therefor, but shall be returned 
to the property clerk " to be disposed of according to the pre- 
vious provisions " of that chapter. (See Greater New York 



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Duboff v. Haslan. 125 



App. Div.] First Department, February, 1931. 

Charter, chap. 8.) Section 685 of the Code of Criminal Proced- 
ure provides that where property alleged to have been stolen 
or embezzled comes into the custody of a peace officer he 
must hold it subject to the order of the magistrate authorized 
by section 686 to direct the disposal thereof. Section 686 
provides that the magistrate before whom an information is 
laid or who examines the charge against the person accused 
of stealing or embezzling the property, may, on satisfactory 
proof of the title of the owner, order it to be delivered to the 
owner, unless its temporary retention be deemed necessary 
in furtherance of justice; and authorizes the magistrate to 
require the owner to pay the reasonable and necessary expenses 
incurred in preserving the property, and provides that the 
order shall entitle the owner to demand and receive the 
property. Section 687 requires a magistrate into whose 
custody stolen or embezzled property comes to deliver it to 
the owner on satisfactory proof of his title and on payment 
of the necessary expenses incurred in preserving it, unless 
its temporary retention be deemed necessary in the furtherance 
of justice. Section 688 provides that if property stolen or 
embezzled has not been delivered to the owner, the court 
before which the trial is had for stealing or embezzling it, 
may on proof of his title order it to be restored to the owner. 
Section 689 relates to the disposition of the property stolen* 
or embezzled and not claimed by the owner within six months 
after the conviction of a person for stealing or embezzling it. 
Section 690 requires a receipt to be given when money or 
other property is taken from a defendant arrested upon a 
charge of crime, but it does not apply to the city of New 
York. Section 691 applies to New York city and is in 
substance the same as section 331 of the Greater New York 
charter and requires that a person be designated to take 
charge of all property alleged to have been stolen or embezzled 
" and which may be brought into the police office " or is taken 
from the person of a prisoner. 

These statutory provisions were doubtless deemed sufficient 
to regulate the duties of the property clerk with respect to 
property coming into his custody. For complying with them 
and in good faith performing his duties under them, reasonably 
and intelligently, he should not be and cannot be subjected 



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126 Duboff v. Haslan. 



First Department, February, 1021. [VoL 195. 

to liability. It is his duty to keep the property safely until 
it is disposed of as provided in the statutory provisions to 
which reference has been made, or until it is taken from him 
by a lawful writ or other process or claimed by one whose 
title or right to possession is incontroverted, or if disputed, 
is duly adjudicated. It is manifest that he is not at liberty 
to surrender the property to any claimant at any or all times, 
and he should not be held liable in conversion predicated on 
his failure to deliver it to one claiming to be the owner but 
whose title is not clear, or is not satisfactorily established, 
or where it may still be required as evidence, or where there 
is another claimant; but these statutory provisions do not 
bar the ordinary remedy afforded to an owner to regain 
possession of his property, which is not held or temporarily 
required as evidence. (Lynch v. St. John, 8 Daly, 142; Wagener 
v. Harriott, 20 Abb. N. C. 283; Simpson v. St. John, 93 N. Y. 
363; Houghton v. Bachman, 47 Barb. 388; People ex rel. 
Simpson Co. v. Kempner, 154 App. Div. 674.) It is perfectly 
plain, therefore, that it would require clear evidence of improper 
action on the part of the property clerk tantamount to bad 
faith or improper motives to render him liable for not delivering 
such property to one claiming to be the owner but not known 
to him to be the owner and entitled to possession and not 
presenting satisfactory proof thereof, and for requiring the 
order of a magistrate or court under the statutory provisions 
to which reference has been made or a writ of replevin or 
other process of the court or an adjudication of the title in 
the claimant if his title be controverted, before surrendering 
possession of the property thus coming to him in his official 
capacity. I am of opinion, however, that sufficient facts are 
alleged and admitted by the demurrer to sustain the action 
to recover the property or to recover its value from appellant, 
unless he shall be in a position to deliver possession to the 
plaintiff, on the theory that he parted with possession by 
wrongfully delivering the property to his successor in office 
with full knowledge that plaintiff was entitled to have the 
possession thereof delivered to her, and that he had wrongfully 
and without right refused her demand therefor. It stands 
admitted by the demurrer that the plaintiff's husband was 
the owner; that the property had been wrongfully seized and 



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Kedrovsky v. Archbishop & Consistory, etc. 127 

App. Div.] First Department, February, 1981. 

taken from his possession and delivered into the possession 
of appellant, in violation of the provisions of section 335 
of the Greater New York charter, hereinbefore quoted; that 
title thereto passed to the plaintiff under the assignment 
from her husband, and that she was entitled to the possession 
thereof when she demanded possession of appellant, and that 
he well knew that she was so entitled to possession; that his 
possession thereafter was wrongful and his delivery of posses- 
sion to his successor was wrongful and in violation of her 
rights as owner. If the appellant can controvert those allega- 
tions, he should answer, joining issue thereon and presenting 
any defense he may have to thej action. 

The order should, therefore, be affirmed, with ten dollars 
costs and disbursements, but with leave to appellant to 
withdraw the demurrer and answer on payment of the costs 
of the appeal and motion. 

Clarke, P. J., Smith, Page and Mebbell, JJ., concur. 

Order affirmed, with ten dollars costs and disbursements, 
with leave to appellant to withdraw demurrer and to answer 
on payment of said costs and ten dollars costs of motion at 
Special Term. 



John. S. Kedrovsky, Appellant, v. Archbishop and Con- 
sistory of the Russian Orthodox Greek Catholic 
Church and Others, Respondents. 

First Department, February 4, 1921. 

Motions and orders — resettlement of order by striking out erro- 
neous recital that certain papers were read on motion. 

The plaintiff is entitled to have an order, denying his motion to have certain 
moneys held by the chamberlain of the city of New York paid over to 
him, resettled by striking therefrom recitals that certain papers were 
read on the motion, where the plaintiff's affidavit that said papers were 
not read is unoontroverted and the memorandum and opinion of the 
court is to the same effect, and there is nothing to show that the court 
had any independent recollection to the contrary. 

Appeal by the plaintiff, John S. Kedrovsky, from an order 
of the Supreme Court, made at the New York Special Term 



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128 Kbdrovsky v. Archbishop & Consistory, etc. 

First Department, February, 1921. [VoL 196. 

and entered in the office of the clerk of the county of New 
York on the 24th day of March, 1920, denying plaintiff's 
motion to resettle the order entered herein on the 18th day 
of March, 1920. 

Ralph M. Frink, for the appellant. 

Edward J. Martin, for the respondents. 

Francis N. Bangs of counsel [Merrill E. Gates, Jr., receiver], 
as amicus curies. 

Laughlin, J.: 

It appears by affidavit that Francis S. Bangs was duly 
appointed, by an order made in this action, a receiver of 
certain property which is the subject-matter of the litiga- 
tion and that by an order duly made and entered on the 
18th day of July, 1919, defendant Nemolovsky, archbishop 
of the defendant church, was ordered and required to 
deliver to the receiver certain of the property, described 
in the order, and the proceeds of the sale of certain of the 
property sold by the defendants since the 17th day of October, 
1918, and that after the service upon said defendant of a 
certified copy of the order, he failed to comply therewith in 
that he failed to pay oyer to the receiver the sum of $2,041.96, 
being the proceeds of sales of the property. Thereafter, on 
the plaintiff's motion, an order was duly made at Special 
Term and entered on the 26th day of November, 1919, 
adjudging said defendant in contempt for failing to turn over 
said sum to the receiver as required by said order and further 
adjudging that said misconduct of said defendant was cal- 
culated to and did defeat, impair, impede and prejudice the 
rights and remedies of the plaintiff to his loss and damage 
in said sum and that the funds of the trust estate in the hands 
of the receiver applicable to the purposes of the trust specified 
in the complaint and to the expenses of the action and receiver- 
ship were thereby diminished and lessened to the extent of 
said sum and said defendant was thereby fined said amount 
and required to pay the same pursuant to article 19 of 
the Judiciary Law, and in default thereof it was ordered 
that he be committed until he complied therewith or should 
be discharged according to law. The order did not specify 



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Kbdbotsky v. Archbishop & Consistory, etc. 129 

App. Div.] First Department, February, 19S1. 

to whom the fine should be paid. It appears by the affidavit 
of the attorney for the plaintiff that when the parties were 
before the court with respect to the. determination of the 
amount of the fine to be imposed on said defendant, it was 
suggested that said defendant claimed to have applied part 
of the money to the benefit of the trust estate and that, there- 
fore, he might be entitled to a credit on the fine therefor and 
that the plaintiff's attorney thereupon stated that if said 
defendant wished to litigate that question he would consent 
that the fine be deposited in court pending a decision on the 
point, and accordingly *rhen said defendant was ready to 
pay the fine he stipulated that an order might be entered 
permitting the payment of thfe fine to the chamberlain of the 
city of New York and that it was stated in the stipulation 
and in the order entered thereon that the intention of the 
plaintiff's attorney in so consenting was to afford said defendant 
a reasonable additional time to make motions as he might be 
advised with respect to said fine and not to give him any new 
or additional right or to prejudice any rights of the plaintiff 
under the original order, and that pursuant to the order as 
thus modified the money was paid to the chamberlain who 
gave a receipt therefor which plaintiff holds. An affidavit 
made by the attorney for the respondents shows that he was 
of the opinion that the fine should be paid to the receiver, 
and that the attorneys appeared at Special Term before the 
justice who made the order modifying the original ofder by 
requiring that payment be made to the chamberlain, and that 
said modified order was drawn by the attorney for the plaintiff 
after the attorney for the defendants had ascertained from 
the chamberlain's office that the fine would be placed to 
the credit of the action, and that the defendants' attorney had 
consistently contended that the .fine was imposed to take the 
place of the property wrongfully sold and that it should be 
retained either in court to the credit of the action, as it has 
been paid, or by the receiver. It appears that the receiver 
Bangs died and thereafter a motion vas made by the plaintiff 
for an order requiring the chamberlain to pay over the amount 
of the fine to the plaintiff and that motion was denied and 
an order denying it was entered on the 18th of March, 1920. 
App. Div.— Vol. CXCV. 9 



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1 30 Kbdrovsky v. Archbishop & CoNSi8Ba&y, etc. 

First Department, February, 1091. [VoL 105. 

That order recites, among other things, that the order 
appointing the receiver and the affidavits and motion papers 
upon which it was made and the order directing said defendant 
to turn over to the receiver the contents of the church stores 
or the proceeds of the sale or sales of such part of the stocks 
of goods therein as had been sold and disposed of by the 
defendants since October 17, 1918, and the affidavits and 
motion papers upon which said order was made, were read 
on the motion for the order requiring the chamberlain to pay 
over to the plaintiff the amount of the fine sq deposited with 
him. The memorandum decision and opinion of the court 
denying the motion does not show that any of those papers 
were before the court and an affidavit made by the attorney 
for the plaintiff, which is incontroverted, shows that they 
were not made part of the motion papers or presented or 
read by either party or by the court on the hearing and deci- 
sion of the motion. Plaintiff evidently contemplates appealing 
from the order and it appears that these papers which were 
not read on the motion axe very voluminous. Without 
intending to encourage an appeal from the order denying 
plaintiff's motion to have the money paid over to him, we 
are of opinion that the plaintiff is entitled to have it resettled 
by eliminating the erroneous recitals that these papers were 
read on the motion. Where there is a question of. fact with 
respect to the reading of papers on a motion, arising either 
on the affidavits or on the affidavits and the recollection of 
the court, the determination of the court is ordinarily con- 
trolling; but here plaintiff's affidavit is uncontroverted and 
the record of the court by the memorandum and opinion is 
to the same effect and there is nothing to show that the court 
had any independent recollection to the contrary. 

It follows that the order denying plaintiff's motion to 
resettle the order should be reversed, with ten dollars costs 
and disbursements, and the motion granted, with ten dollars 
costs. 

Clarke, P. J., Dowling, Page and Greenbattm, JJ., 

concur. J^j 

Order reversed, with ten dollars costs and disbursements, 
and motion granted, with ten dollars costs. 



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Lafrinz v. Whitney. 131 



App. Div.] First Department, February, 1921. 



Claus Lafrinz, Plaintiff, v. Payne Whitney and Others, 
as Executors, etc., of Oliver H. Payne, Deceased, 
Defendants. 

First Department, February, 4, 1921. 

Submission of controversy — right of court to draw inferences — 
wills — construction of bequest to " each person * * • 
customarily employed as part of my household' 9 as including 
watchman. 

The court is not at liberty to draw inferences from facts stipulated on the 
submission of a controversy on an agreed statement of facts. 

The plaintiff was entitled to take under a bequest in a will by which general 
legacies were made " to each person * * *, who at the time of my 
death shall be in my service and shall then be customarily employed aa 
part of my household," where it appeared that the plaintiff at the time of 
the testator's death was in his service and had been for eighteen years 
" customarily and continuously employed as a watchman watching the 
exterior " of testator's town house; that the contract of employment was 
oral, and that the plaintiff performed his work under the supervision of 
the testator or the butlers employed by him from time to time, And his 
compensation was paid monthly by the butler, though it did not appear 
where he ate or slept. 
The plaintiff was customarily employed as part of testator's household, 
since he performed his duties exclusively in and about the premises 

I and under the supervision of a butler, who customarily supervises ths 

! performance of the duties of household servants. 

Smith, J., dissents. 

Submission of a controversy upon an agreed statement oi 
facts pursuant to section 1279 of the Code of Civil Procedure. 

Gustav Goodmann % for the plaintiff. 

Edwin De T. Bechtel of counsel [Sidney Wetmore Davidson 
with him on the brief; Carter, Ledyard & MiUmrn, attorneys], 
for the defendants. 

Laughlin, J. 

The point presented by this submission relates to the 
construction of the wiD of Oliver H. Payne, who died on the 
27th of June, 1917, and whose will was duly admitted to 



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1 32 Lafrinz v. Whitney. . 

First Department, February, 1921. [Vol. 195. 

probate by a surrogate of New York county on the 16th of 
August, 1917. The submission does not show when the will 
was executed, but it appears that the testator maintained a 
country house in Ulster county and a town house known as 
No. 582 Fifth avenue, in the borough of Manhattan, New 
York. At the time of the death of the testator the plaintiff 
was, and continuously for more than eighteen years had been 
in his service " and customarily and continuously employed 
as a watchman watching the exterior " of the said town house 
and premises. The contract of employment was verbal and 
was personally negotiated by the testator and the term of 
employment commenced on the 2d day of May, 1899. The 
plaintiff performed his duties under the immediate supervision 
of the testator and butlers employed from time to time by 
the testator, and his compensation was paid monthly by the 
butler. The will contains certain specific and general legacies 
and the submission shows that after their payment there will 
remain not less than 9100,000 as the residuary estate. The 
plaintiff is not named as a specific legatee and he is not referred 
to by name in the will. He claims a legacy under the para- 
graph of the will bequeathing general legacies which is as 
follows: 

" To each person, not hereinbefore named, who at the time 
of my death shall be in my service and shall then be customarily 
employed as part of my household in my house in New York 
City or in my country house in Ulster County, New York, 
the sum of three thousand dollars, if he or she shall have 
been in my service for two years, with the further sum of two 
hundred dollars for each year, or portion of year in excess 
of two years, and the sum of one thousand dollars if he or she 
shall have been in my service for less than two years." 

It is stipulated that the plaintiff is entitled to recover of 
the executors $6,400 and interest thereon from the 16th of 
August, 1918, if he is included in the general provisions of the 
will herein quoted. 

It is 'evident that the submission could have been made 
more definite by stating expressly whether the plaintiff received 
his board from the testator and ate in the house with the 
domestic servants, and whether he was furnished sleeping 
accommodations there. It may be that inferences favorable 



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Lafrinz v. Whttnkv. 133 

App. Div.] First Department, February, 1M1. 

to the plaintiff with respect to these matters could be drawn 
from the facts stipulated, bat on a submission the court is 
not at liberty to. draw inferences. The point presented for 
decision depends upon the intent of the testator (See Tilden v. 
Green, 130 N. Y. 29, 51 ; Lewiaohn v. Henry, 179 id. 352, 361) ; 
and I am of opinion that the facts stipulated sufficiently show 
his intent to give a legacy to the plaintiff under these general 
provisions. It is stipulated, in effect, that the plaintiff was 
on duty under this employment continuously for upwards 
of eighteen years and that his duties were to watch the exterior 
of the house and premises. The submission does not show 
from what point or points he watched the house or premises; 
but it is not a strained construction of these provisions of the 
will intended to reward loyal or faithful services of employees 
in and about the household of the testator to hold that the 
plaintiff in the performance of those duties during this long 
period of years, evidently to the satisfaction of the testator, 
was deemed by the testator to be customarily employed as 
part of his household in his town house. It is stipulated that 
he performed his duties under the supervision of the testator 
. and of the butlers from time to time employed by the testator, 
and that he was paid monthly by the butler. In these 
circumstances I think the stipulated facts fairly show that 
the employment of the plaintiff was in and about the town 
house of the testator, for it is neither stipulated nor is it to 
be presumed that the plaintiff performed his duties and ate 
his meals exclusively on the public street or sidewalk outside 
of the house and premises, both in summer and in winter 
and did not entet the house at all in connection with his 
employment, or that the testator or his butler went outeide 
the premises to give him orders and to supervise his work 
and to pay him his monthly compensation. From the nature 
and place of employment the plaintiff must from time to 
time have been in and about the part of the house used by 
the household servants. The fact that the performance of 
his duties was in part supervised by the butler and that 
he was paid by the butler shows that he was in effect regarded 
by the testator as a domestic servant and that the compensation 
paid to him was regarded by the testator as a part of the 
expense of maintaining the town house^ It would, I think, 



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1 34 Lafrikz v. Whitney. 

First Department, February, 1921. [Vol. 196. 

be unreasonable to hold that the testator intended to reward 
all of his household servants, some of wham doubtleeB performed 
services outside of 1jhe town house, and not to reward the 
plaintiff whose services were exclusively performed at the 
premises in guarding the property of the testator and himself 
and his family and other servants. There can be no position 
of employment embodying greater trust and confidence than 
this employment of the plaintiff by the testator.. It would 
be strange, indeed, if the testator intended to reward . all 
others in his employ at his town house and to make no provision 
for the plaintiff who had rendered loyal and efficient services 
of this particularly intimate and confidential nature involving 
the utmost fidelity, evidently to the entire satisfaction of the 
testator for so long a period. Doubtless it may not be said that 
in any and all circumstances a watchman employed to guard a 
house and premises and the occupants thereof is part of the 
household ; but if he lived in the house and took his meals there, 
clearly he would be. (Woodward v. Murray, 18 Johns. 400; 
Matter of Drax [Savile v. Yeatmtm], 57 L. T. [Ch. D.] 475 ; Pippin 
v. Jones, 52 Ala. 161, 165; Perkins v. Morgan, 36 Col. 360.) 
But we are not definitely informed with respect to those facts, 
which might have removed all possible doubt with respect to 
the construction of the will. We cannot, however, infer that 
these were or were not facts. We must construe the will on 
the facts submitted if they are sufficient to enable us to do so. 
They are evidently the only facts that either party deems 
material. Regardless, therefore, of where the plaintiff slept 
or ate, it is stipulated that he was there continuously. If that 
did not require him to be there day and bight, doubtless his 
hours of duty would have been stipulated or, at least, it would 
have been stated that he was a day watchman or a night 
watchman. I deem it quite clear that the testator intended 
that he should with the other household servants, with whom 
the testator in placing him under the supervision of the butler 
with respect to duties and payment of his salary, classified him, 
take a legacy under these provisions of the will. Judgment, 
therefore, should go in favor of the plaintiff unless the phrase- 
ology employed by the testator is not susceptible of a con- 
struction that will enable the plaintiff to take. I think it is. 
One definition given by the Century Dictionary of " house- 



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Lafrinz v. Whitney. 185 

App. Div.] First Department, February, 1991. 

hold " is as follows: "An organized family and whatever 
pertains to it as a whole; a domestic establishment." It is 
also stated in the American and English Encyclopaedia of Law 
(Vol. 15 [2d ed.}, p. 773) : " The general definition of household 
when used as a qualifying word, is pertaining to or belonging 
to the house or family." It is to be borne in mind also that 
the phraseology of the will does not confine the legacies to 
those who were in fad part of the household of the testator, 
and if it did, it may be that the determining inquiry would be 
whether the plaintiff was one of his domestic servants (See 
Woodward v. Murray , supra; Matter o/Drax [Savile v. Yeatman], 
supra; Pippin v. Jones, supra; Perkins v. Morgan, supra), but 
it extends to all those customarily employed as part of his 
household in his town house. Since the plaintiff performed 
his duties exclusively in and about the premises and under the 
supervision of a butler, who customarily supervises the per- 
formance of the duties of household servants, I think the 
testator regarded the plaintiff as customarily employed as part 
of his household. The words " in my house " are manifestly 
not to be construed literally and should be deemed to mean in 
and about or at the house. (See Bush Brothers Lumber A 
Milling Co. v. Eastwood, 132 S. W. Rep. [Tex.] 389, 392.) 

Bequests to servants generally have been held to embrace 
all in the employ of the testator regardless of whether their 
services were performed exclusively or in part within the house. 
(See Thrupp v. Cottett, 26 Beav. 147; Armstrong v. Clattering, 
27 id. 226.) 

The defendants rely principally upon Frazer v. Weld (177 
Mass. 513). The court there construed a bequest to each one 
of the servants of the testator " who at the time of my death 
shall have been in my employ at my homestead or at the stable 
connected therewith, a period of four consecutive years, the 
sum of one thousand dollars each," as using the word " home- 
stead " in a restricted sense and meaning dwelling house and 
construed the bequest as not including a gardener who per- 
formed no services either in or about the house or stable; 
but in so doing the court stressed the fact that the word 
"homestead" could not be construed in a broad sense for it 
was limited by the reference to the stable connected 
therewith. 



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136 New York Income Corporation v. Wblm. 

First Department, February, 1921. [Vol. 195. 

It follows that the plaintiff is entitled to judgment accord- 
ing to the submission which provides that no costs are to be 
allowed, 

Clarke, P. J., Page and Mekrell, JJ., concur; Smith, J , 
dissents. 

Judgment ordered for plaintiff, without costs. Settle order 
on notice. 



New York Income Corporation, Respondent, t>. Frank M. 
Wells and Others, Defendants, Impleaded with Blake- 
Daniels Co., Inc., Appellant. 

New York Income Corporation, Respondent, v. Frank M. 
Wells and Others, Defendants, Impleaded with John B. 
Daniels, Appellant. 

. First Department, February 4, 1921. 

Equity — complaint stating cause of action for accounting and fore- 
closure of lien against corporation and directors — allegations 
stating theory of relief incidental to foreclosure — misjoinder of 
cause of action against individual director. 

The complaint in an action against a corporation and its directors examined, 
and held, to state a cause of action in equity to compel an accounting as 
to a trust and trust fund arising under a certain agreement alleged in the 
complaint and to foreclose a lien held by the plaintiff on property pledged 
to it as security. 

Allegations with respect to the continuance of the business and specific 
performance should not be construed as stating separate independent 
causes of action, but merely a theory of relief incidental to the foreclosure. 

There is a misjoinder of causes of action in that a cause of action is alleged 
against an individual defendant by which it is sought to have it adjudged 
that the plaintiff is entitled to certain stock of the defendant corporation 
which was issued to said defendant and to compel the transfer thereof to 
the plaintiff. 

Appeal in the first action by the defendant, Blake-Daniels Co., 
Inc., from so much of an order of the Supreme Court, made at 
the New York Special Term and entered in the office of the 
clerk of the county of New York on the 8th day of March, 
1920, as overrules its demurrer to the complaint and denies its 
motion for judgment dismissing the complaint. 



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New York Income Corporation v. Welis. 137 

App. J>iv.] First Department, February, 1921. 

* 

Appeal in the second action by the defendant, John B. Dan- 
iels, from an order of the Supreme Court, made at the New 
York Special Term and entered in the office of the clerk of the 
county of New York on the 8th day of March, 1920, overtoil- 
ing said defendant's demurrer to the complaint. 

Frank S. Moore [Wells & Moore, attorneys], for the appellants. 

OrviUe C. Saribom, for the respondent. 

Latjghlin, J. : 

The orders were made on motions for judgment on the 
pleadings consisting of the complaint and demurrers. Each 
of the appellants separately demurred on the same grounds, 
which are in substance as follows: (1) That the complaint 
fails to state facts sufficient to constitute a cause of action; 
(2) that causes of action have been improperly united, in that 
there is a cause of action against the defendant company 
and Lawrence E. Blake which does not affect the other parties; 
and a cause of action against the defendant Wells for a breach 
of duty to the plaintiff and for fraud, and to require him to 
surrender to it certain capital stock of the defendant company 
and demanding an injunction, all of which affect no other 
parties; and a cause of action by the plaintiff as a stockholder, 
and another under sections 90 and 91 of the General Corpora- 
tion Law as a creditor of the defendant company, to compel its 
directors to account for official action and for the appointment 
of a receiver; and another cause of action for the foreclosure 
of an assignment by the defendant company to the plaintiff 
of the pledge of certain rents and for a deficiency judgment 
against the individual defendants; and still another cause of 
action for the specific performance of an agreement between the 
plaintiff and the defendant company. 

The allegations of the complaint are neither plain nor con- 
cise in all respects, as required by the provisions of section 481 
of the Code of Civil Procedure; but I think they are sus- 
ceptible of the construction that the plaintiff intended to allege 
thereby, in effect, as follows: that the plaintiff and defendant 
companies are domestic corporations, and the individual 
defendants constitute the board of directors of the latter; that 
after the defendant company was incorporated and had 
acquired from the New York Central and Hudson River Rall- 



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138 New York Income Corporation v. Weus. 

First Department, February, 1921. [Vol. 195. 

road Company leases of fifteen parcels of land, which consti- 
tuted its sole assets, it negotiated an agreement with the 
plaintiff under which plaintiff was to indorse and guarantee 
four promissory notes to be made by the defendant company 
to its own order and indorsed by it, and then by the defend- 
ant Lawrence E. Blake as an accommodation indorser for the 
benefit and protection of the plaintiff, and the notes were to 
be discounted by the Lawyers' Title and Trust Company and 
the proceeds of the discount, together with $2,000 cash capital, 
to be otherwise provided by the defendant company, were to 
be used in the development of the business of the defendant 
company in improving the leasehold property, and the money 
was to remain on deposit with the trust company and to be 
checked out for said purposes only on the counter-signature 
of the plaintiff, and the plaintiff was to be further protected 
by a rental income certificate constituting an assignment of 
the rentals on the fifteen parcels of land to be executed by the 
defendant company; that the plaintiff intrusted the making 
and supervision of the agreement in its behalf to the defendant 
Wells, who was one of its directors, its secretary and its counsel, 
and it relied upon him to protect its interests; that the notes 
were made and discounted according to the agreement, and 
the income certificate was issued to the plaintiff; that the 
defendant Wells took advantage of the trust so reposed in him 
by the plaintiff, and with the intent and purpose of defrauding 
it and without its consent or the knowledge of its president 
or other directors, participated in the organization of the 
defendant company and became its treasurer, and with the 
defendants Lawrence E. Blake and John B. Daniels became 
its sole incorporators and stockholders, and represented- to his 
feUow-incorporators that the plaintiff required, as a condition 
of giving its indorsement and guaranty, that thirty-seven and 
one-half per cent of the capital stock of the defendant company, 
consisting of 1873^ shares of the par value of $100 each, be 
issued in his name for the account of the plaintiff, and that, 
pursuant to his demand, it was so issued and is now so held by 
him, and that he has refused after due demand to surrender 
it to the plaintiff; that said Wells, in violation of his duty 
to the plaintiff, permitted the notes to be so discounted with- 
out requiring the defendant company to raise the additional 



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New York Income Corporation v. Wellr 139 

App. Div.] First Department, February, 1991. 

$2,000 as agreed, and that he advanced $1,333.32 for the com- 
pany to its landlord in payment of rent, and was reimbursed 
therefor from the proceeds of the loan; that said Wells upon 
his signature as treasurer of the defendant company, and the 
signature of Lawrence E. Blake as president of the defendant 
company, fraudulently and improperly withdrew from the 
proceeds of the discount of the notes on deposit with the trust 
company $3,158.32, and paid over to the defendant Lawrence 
E. Blake $500, and to the defendant John B. Darnels $200 
thereof, and they fraudulently received the same, and he 
appropriated the balance to his own use; that said Wells as 
an officer of the defendant company has hindered and refused 
to consent to the carrying out of repairs upon certain of the 
leasehold property, which repairs are necessary to develop 
the rental value thereof and by the terms and conditions of 
the lease are required to be made by the lessee; that said 
Wells has also collected certain rents under the rental income 
certificate assigning the rentals to the plaintiff, for which 
he has refused to account to the plaintiff or to the defendant 
company, and he and the other defendants have in these and 
other respects failed and refused to perform his and their 
obligations to the plaintiff and to the defendant company; 
that when the first of the notes, which was for $2,500, fell due, 
the defendant company and the defendant Blake as indorser 
failed to pay it, and it was duly protested and due notice of 
protest given to the plaintiff and it was obliged to and did 
pay the note, and thereupon received the note and is now the 
holder and owner thereof, and that under the agreement, 
owing to said default, the other notes thereupon became due 
and payable; that defendant Wells is using his position and 
control of the said 187^ shares of the capital stock of the 
defendant company for the domination of the company for 
his personal benefit, and as a director and officer of the defend- 
ant company has, at 'all times, managed the same solely in 
his individual interest and in the interests of his associates 
with a view to making personal profits therefrom, and has 
refused to manage the company for its benefit or the benefit 
of the plaintiff as the owner of the said 187^ shares of stock, or 
for the benefit of the creditors, and has refused to authorize 
or make repairs required to be made for the proper develop- 



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140 New York Income Corporation v. Weua. 

First Department, February, 1921. [Vol. 105. 

meat of the leasehold property and as required by the terms 
of the lease, and has refused to pay the just debts of the 
defendant company, in consequence whereof four judgments, 
each for $83.72, have been recovered against the defendant 
Company; that the judgment creditors and .other creditors of 
the defendant company are pressing their claims for payment 
and threaten to attach and levy upon its property and to 
place the sheriff in possession thereof, which will result in 
judgments, executions and seizures and forced sales of the 
property and the cancellation of the lease by the lessor and the 
cessation of business by the defendant company; that any 
action on the part of the creditors of the company will inter- 
fere with and obstruct its business and cause it and its creditors, 
including the plaintiff, great and irreparable injury and loss, 
and the value of the assignment of the rents to the plaintiff 
Will thereby be destroyed; that only as a going concern can 
the. defendant company meet its obligations or* arrange for 
meeting them and comply* with its obligations under the lease 
and prevent a cancellation of the lease owing to its default 
thereunder; that a controversy exists between the officers of 
the defendant company by reason of which it is unable to 
transact any corporate business, and that unless the court 
appoints a receiver with power to make the repairs and altera* 
tions required to be made by the lease, a default will be suffered 
thereunder, which will result in the cancellation of the lease, 
to the irreparable injury and damage of the plaintiff and other 
creditors of the defendant; that any attempt of the plaintiff 
to enforce its claims at law as a creditor of the defendant will 
result in similar action on the part of the other creditors and 
in wasteful strife and controversy and in a default under the 
lease, which constitutes the sole property of the defendant 
company, and that can be avoided only by the intervention of 
the court and the granting of equitable relief, including the 
appointment of a receiver and the continuance of business 
under the direction of the court; that unless a receiver is 
appointed to handle the property of the defendant company as 
a trust fund for the payment of the plaintiff and other creditors, 
its property will be dissipated, wasted and sacrificed, to the 
great and irreparable injury of the plaintiff and other creditors; 
that unless the defendant Frank M. Wells is enjoined and 

D^itiz 



New York Income Corporation v. Wells. • 141 

App. Diy.] First Department, February, 1921. 

restrained from transferring the 187^ shares of stock held by 
him pending the action, he will so transfer them, and that the 
plaintiff has no adequate remedy at law. 

The prayer for relief is, (1) that a receiver of the defendant 
company be appointed with authority to carry on its business; 

(2) that the court administer the property of the defendant 
company and adjudicate the rights and claims of the plaintiff; 

(3) that creditors be enjoined from instituting or prosecuting 
actions against the company and that its officers and agents 
be enjoined from interfering with or disposing of any of its 
propterty; (4) that in due time, the property of the company 
be sold and the proceeds applied in payment of its obligations; 
(5) that it be adjudged that the plaintiff is the owner of the 
187J^ shares, and that the defendant Wells be required to 
transfer and deliver them to it, and that in the meantime he be 
enjoined from disposing of them or delivering them to any one 
other than the plaintiff; (6) that the individual defendants be 
required to account to the defendant company for all of their 
acts as its officers and directors, and for all moneys improperly 
received by them from it; (7) that the plaintiff have judgment 
against the defendant company and Lawrence E. Blake as 
maker and indorser, respectively, of the first note, together with 
interest and costs, and for the amount of the other notes with 
interest; (8) that the defendant company and all persons claim- 
ing under it after the filing of the notice of the pendency of 
this action be barred and foreclosed of all right or equity of 
redemption in or to the premises and assigned rents, and that 
their right, title and interest be sold and the proceeds applied 
in payment of the plaintiff's claim and the costs and expenses 
of this action, and that the individual defendants may be 
adjudged to pay any deficiency; (9) that the defendants be 
adjudged specifically to perform the said agreement between 
the defendant company and the plaintiff, and be adjudged liable 
to the plaintiff for any deficiency after the application of any 
amount realized and applicable to the payment thereof, and for 
other and further relief. 

These allegations sufficiently show a cause of action against 
each of the appellants. The plaintiff, having been obliged 
to pay one of the notes, and having become liable for the 
payment of the others, which thereupon becariae due and 



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142 New York Income Corporation v. Wells. 

First Department, February, 1931. [Vol. 195. 

payable, is at least entitled to foreclose its lien on the property 
pledged to it as security, and is entitled to have the trust 
fund restored by compelling those who have participated in 
dissipating it to return the money to the company. On that 
theory appellant Daniels may be compelled to restore, at 
least, the amount he received. The plaintiff does not bring 
the action as a stockholder; and it is quite clear that on the 
facts alleged it is not entitled to have the directors of the 
company account, the same as in a stockholders' action, 
although, in effect, it has demanded that relief. The allega- 
tions must be construed as limiting the accounting to the trust 
and trust fund created by and arising under the agreement. 
It is not for us now to decide the precise extent to which the 
plaintiff may have relief. It is sufficient that the complaint 
states an equitable cause of action against each of the appel- 
lants arising out of and under the agreement, and that all 
other allegations, with the exception of those relating to the 
stock, are for relief to which the plaintiff deems itself entitled 
in connection with the foreclosure of its lien and to enable it 
to have the sale of the property made to the best advantage. 
We merely hold that the allegations with respect to the con- 
tinuance of the business and specific performance should not 
be construed as stating separate independent causes of action, 
but merely a theory of relief incidental to the foreclosure. 

It is equally plain, I think, that the plaintiff has joined with 
this equitable cause of action against the defendants another 
cause of action against the defendant Wells only, which in no 
manner concerns the other defendants. According to the 
allegations of the complaint, there was no agreement between 
the plaintiff and any of the defendants by which the plaintiff 
was to receive part of the capital stock of the defendant 
company, or by which any part of its capital stock was to 
constitute a part of the trust property in the administration 
of which plaintiff was interested. Plaintiff's representative in 
the matter, without its knowledge or consent, exacted the 
issuance of the stock in his name and delivery thereof to him 
for the account of or in behalf of the plaintiff, and the plaintiff 
on discovering these facts evidently determined to ratify his 
acts and claim the stock; but no facts are alleged tending 
to show a cause of action against any of the other defendants 



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New York Income Corporation v. Welm. 143 

App. Div.] First Department, February, 1921. 

concerning that transaction. According to the allegations of 
the complaint, the stock has been issued to the defendant 
Wells, who holds it for the plaintiff. Manifestly, any issue 
with respect to the ownership or right to possession of that 
stock is a controversy between the plaintiff and Wells only, 
and is in no manner interwoven with the main cause of action, 
which concerns the defendant company and some or all of 
the individual defendants. Appellants may be prejudiced by 
the joinder of these causes of action. Their counsel states, by 
way of argument to show how appellants may be prejudiced, 
what is said to have actually transpired in this action since the 
demurrers were argued at Special Term. He says that a 
receiver has been appointed and that unless the cause of action 
for the recovery of the stock is eliminated, the company will 
be unable to discharge the receivership by paying the amount 
to which the plaintiff is entitled, which he states it has offered 
to do and that on the offer being rejected a motion was made 
for a discharge of the receivership on the defendant company's 
paying the amount owing to plaintiff and costs, which amounts 
it was ready, willing and able to pay, but that the plaintiff 
opposed the motion and insisted upon a continuance of a 
receivership until the issues with respect to the stock are 
decided, and that when the points were prepared that motion 
was still sub judice at Special Term. Of course, these facts 
do not appear in the record; but they well might arise and they 
illustrate how appellants may be prejudiced if issues arising 
on plaintiff's claim to the stock, which do not concern them, 
were to be tried and decided herein. 

It follows that the orders in so far as they overrule the 
demurrers for misjoinder should be reversed, with ten dollars 
costs and disbursements to each appellant, and the demurrers 
on that ground sustained, with ten dollars costs, but with 
leave to plaintiff to amend upon payment of the costs of the 
appeals and motions. 

Clarke, P. J., Smith, Page and Merrsll, JJ., concur. ] 

Orders reversed, with ten dollars costs and disbursements to 
each appellant, and demurrers sustained, with ten dollars costs, 
with leave to plaintiff to serve an amended complaint upon 
payment of said costs. 



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)44 Hendricks v. Clements. 



First Department, February, 1931. [Vol. 195. 



John T. Hendricks, Appellant, v. Hurin M. Clements, 
Doing Business under the Trade Name of Clements & Son, 
Respondent. 

First Department, February 4, 1921. 

Master and servant — action for wrongful discharge — contract of 
employment contained in letter to plaintiff and written acceptance 
— parol evidence inadmissible to show that contract was not to 
become effective as to term of employment till plaintiff had demon- 
strated his ability — charge permitting jury to find that written 
instrument did not embrace real contract erroneous. 

In an action to recover damages for wrongful discharge in which it appeared 
-that the contract of employment consisted of a clear, positive and unam- 
biguous offer by the defendant to employ the plaintiff for three years at 
a stated salary and a percentage of profits, and an equally clear and unam- 
biguous letter from the plaintiff to the defendant accepting the offer, 
it was error for the court to permit the defendant to introduce parol evi- 
dence to. show that said correspondence was tentative merely and that 
it was the intention of the parties later, and after the plaintiff had demon- 
strated his ability, to enter into a three-year contract. 

It was likewise error for the court to so charge the jury as to permit it to 
find that the written instruments on which the plaintiff relied did not 
embrace the real contract between the parties. 

Appeal by the plaintiff, John T. Hendricks, from a judgment 
of the Supreme Court in favor of the defendant, entered in 
the office of the clerk of the county of New York on the 25th 
day of March, 1320, upon the verdict of a jury, and also from 
an order entered in said clerk's office on the 2d day of Decem- 
ber, 1919, denying plaintiff's motion for a new trial made upon 
the minutes. 

F. C. Nicoderrms, Jr., of counsel [Lawrence Greer and H. 
Brua Campbell with him on the brief; Pierce & Greer } attorneys], 
for the appellant. 

Hector M . Hitchings, for the respondent. 

Merrell, J.: 

This action is brought by the plaintiff to recover damages 
which he claims to have sustained by reason of his wrongful 



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Hendricks v. Clements. 145 

App. Div,] Firgt Department, February, 1521. 

discharge by defendant, his employer. Plaintiff claims under 
a written contract which he alleges he entered into with the 
defendant on or about June 16, 1917. At that time the defend- 
ant, a resident of Philadelphia, in the State of Pennsylvania, 
was engaged in the sale of linseed oil, representing a large 
producer of that commodity. Defendant was also the Amer- 
ican representative of the Dutch East India Company, acting 
as its sole agent for the sale in America of cocoahut oil and other 
products of said company. Owing to the European war then 
in progress the output of the Dutch East India Company was 
largely diverted to the United States, via the Pacific coast 
ports and the Panama canal. The defendant was desirous 
of obtaining the services of a tfepresentalive in the city of New 
York to take charge of defendant's linseed oil and other 
business at New York. Defendant,' early in the year 1917, 
entered into negotiations with' the plaintiff with a view of 
securing the latter's services as such New York representative. 
Plaintiff, at that time, resid6d at Sto Francfeco, Cal., and occu- 
pied a position of reaponsihility as; traffic manager of the 
Western Pacific Railway Compapy. At defendant's request 
and upon his suggestipn to the plaintiff that a business arrange- 
ment might be made to plaintiff's substantial advantage, 
plaintiff came east and negptiaJiions followed with respect to 
plaintiff's entering defendant's sqrvijce. After some consider- 
able negotiations, on June 8, 1917, the plaiptiff, who was then 
at Philadelphia, Penn., .made a written proposition to the 
defendant in effect offering jtoact as defendant's representative 
with reference to the business of the Dutch East India Com- 
pany in the United States, and that plaintiff would also act as 
defendant's employee in defendant's other general oil broker- 
age and commercial business at a compensation of $15,000 
per annum, payable monthly, plus ten per centum of the net 
profits of the business, payable quarterly. In Ws proposition 
the plaintiff specified that tb$ arrangement should be for the 
period of five years, unless ,by further agreement between the 
parties the same might be canceled and either a copartnership 
formed or a corporation orgpftieed to handle and continue 
defendant's said business, in which partnership or corporation 
plaintiff would expect to participate. The defendant did not . 
Ar*< Drv*— Vol. CXCV. 10 



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146 Hendricks v. Clements. 

First Department, February, 1921. [Vol 105. 

accept such proposition of the plaintiff, but three days later, 
on June 11, 1917, made a counter-proposition to the plaintiff, 
in writing, as follows: 

<< Mr. J. T. Hendricks, " R ™ ntt - June U1h > 1917 ' 
" San Francisco, Cal.: 

" Dear Sir. — Referring to our conversation of today, we 
will be very glad to enter into a business arrangement with 
you on the following basis: 

" We will pay you a salary of $12,000 per annum, and give 
you an interest of 10% in the net profits of our business at New 
York and Philadelphia, payable quarterly each year. 

" On the Linseed Oil business in New York, instead of pay- 
ing you 10% profit, we will pay you 50% of the net profits of 
the Linseed Oil business in the New York territory. We will 
also enter into a contract with you making this agreement 
binding for three years. 

" We would like very much to have a reply from you prior 
to July First, 1917. „ Yours very truly 

" CLEMENTS & SON, 

" H. M. Clement." 

This written proposition was either delivered to the plaintiff 
personally by the defendant or was mailed to and received by 
the plaintiff at San Francisco. On June 16, 1917, the plain- 
tiff, in writing, accepted defendant's proposition. Plaintiff's 
written acceptance was embodied in the following letter, which 
was received by the defendant: 

" J. T. Hendricks, 
" San Francisco. 

" Messrs. Cements & Son, " Jym 16 ' 1917 ' 

" 1040 Widener Building, 

"Philadelphia, Pa.: 
" Gentlemen. — Referring to yours of June 11th, by Mr. 
H. M. Clements, I beg to advise that after reflection I will 
be glad to accept the proposition which you set forth and 
you may consider this letter as my acceptance and approval 
thereof. Very truly yours, 

"J. T.HENDRICKS." 



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Hendricks v. Clements. 147 

Appu IMy.] First Department, February, 1921. 

Upon receipt thereof the defendant, on June 23, 1917, 
wrote the plaintiff expressing great happiness that the latter 
had decided to join the defendant in business, and expressing 
in the most sanguine terms defendant's confidence in the pos- 
sibilities and future success of their enterprises. Defendant, 
in this letter, stated that he would be very happy if the plain- 
tiff could make arrangements to come east by the fifteenth of 
August and familiarize himself with the details of the business. 
Plaintiff soon after in the latter part of July, severed his busi- 
ness connections in the west and, accompanied by his wife, 
came east to take up his new duties. 

Defendant testified that he saw plaintiff at Atlantic City, 
where the plaintiff had taken his wife to recuperate, the 
latter part of July, and then told the plaintiff that as he had 
gone through a good deal with his wife and the weather was 
very hot, if he did not want to he need not come to New York 
immediately, but to take a few days' rest. Defendant testified 
that the plaintiff did not, in fact, report to New York until the 
sixth or seventh of August, but that his salary dated from 
August first. 

Plaintiff at once took up his duties at the New York office, 
but the evidence would seem to indicate that under plaintiff's 
direction defendant's business in the city of New York did 
not prosper satisfactorily to the defendant. Considerable 
criticism of the plaintiff was indulged by the defendant, 
culminating in written communications and telephonic con- 
versations wherein defencfcnt severely took the plaintiff to 
task for failure to put the business upon a paying basis. 
Finally, upon December 28, 1917, the defendant wrote plaintiff 
at length criticising his work and the manner in which he dis- 
charged his duties as defendant's New York representative. 
On February 4, 1918, defendant again wrote plaintiff of his 
disappointment in the existing conditions. On February 8, 
1918, plaintiff replied by letter stating to the defendant that 
he certainly would be unwilling to continue for any protracted 
period a relation with the defendant which was not mutually 
satisfactory, and that he would endeavor as soon as practicable 
to make other connections and to relieve the defendant from 
his obligations under their contract. Following plaintiff's 
entry upon defendant's service under said contract he was paid 



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148 Hendricks v. Clements. 

First Department, February, 1981. [Vol. 1W. 

a salary of $1,000 for the months of August, September, 
October, November and December, 1917, and January, 1918. 
In his letter to the defendant of February 8, 1918, the plaintiff 
also called attention to the fact that defendant's Dutch East 
India business had been a very profitable one and that under 
the terms of their contract the defendant was bound to account 
to plaintiff for ten per cent of the profits on that business both 
in New York and Philadelphia, and stated that two quarterly 
periods had passed and that thus far the defendant had not 
accounted. This letter of the plaintiff's seems to have pre- 
cipitated the break between the parties. Upon its receipt 
defendant called plaintiff upon the telephone and a con- 
versation, very heated on the part of the defendant, ensued, 
wherein the defendant became more or less abusive toward 
the plaintiff. On February 12, 19i8, at the suggestion of the 
defendant, the parties met at the Biltmore Hotel in New York 
city with a view of reaching an understanding. Defendant 
testified that he then charged the plaintiff with having made 
a miserable failure of their business enterprise and, finally, 
becoming very angry with the plaintiff, ordered him from the 
room, with which command plaintiff complied. On the day 
following plaintiff wrote defendant expressing disappointment 
at the result of the Biltmorte interview, and suggesting that 
inasmuch as defendant had requested the same, plaintiff had 
assumed that the defendant had determined to carry out his 
obligations under his letter of June 11, 1917, and expressed a 
willingness on his, plaintiffs, part to continue in the future as in 
the past to fulfill all obligations on his part; but as defendant 
had refused to permit plaintiff to do so it became incumbent 
upon him to pursue his legal remedies. Soon thereafter the 
present action was commenced. 

Defendant, answering the plaintiff's complaint, admitted 
the making of an arrangement with plaintiff but which defend- 
ant claimed was partly oral and partly written, and that the 
letter of June 11, 1917, from defendant to plaintiff, and plain- 
tiff's reply thereto June 16, 1917, did not make the complete 
contract between the parties, but that the contract into 
which they entered was to be thereafter put into definite form. 
Defendant in his answer also alleged that plaintiff, in his 
conduct of defendant's business, was wholly inefficient and 



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Hvndbioks v. Clements. 149 

■ I ■ * 

Appt Div.] Firpt Department, February » 1931. . 

that plaintiff's service was without value and without results 
to the defendant. .Defendant further, alleged in his answer 
that plaintiff had voluntarily left bis employ and had breached 
and violated his contract with the defendant. 

The jury upon the trial, rendered a verdict in favor of the 
defendant, upon whifh. .the judgment appealed from was 
entered. 

The plaintiff seeks reversal of the said judgment upon this 
appeal upon the ground of error committed at the trial 
Under objection and exception: of plaintiff's counsel, defendant 
was permitted to give pa*ol evacuee tending to show that the 
letter from defendant to ptaitttiff of Jijne 11, 1917, and plain- 
tiff's letter to defendant of June 16, 19J7> upon which plaintiff 
bases his action, did, not embrace the real contract between 
the parties. Upon the trial the defendant was permitted to 
introduce parol evidence, to the effqtt that there was an oral 
understanding between the parties that the provision of the 
contract stipulating for a definite th?ee years' term was not 
to become effective, until pfcain&iff had served a six or seven 
months' apprenticeship during which he should demonstrate 
his ability to make, a sttdcess.of the business. In permitting 
such parol proof to vary the terms of the written contract 
between the parties, I think the trial court clearly erred- The 
law is too well settled to require dwussion or the citation of 
authorities that. all pitevwiS' negotiations between the parties 
to a contract are superseded by abd are deemed to be embodied 
in the written instrument itself when finally executed, and 
evidence of talk or negotiations between the parties to a 
valid instrument in writing, either prior to or at the time of 
its execution, is inadmissible to vary or contradict its terms. 
The only exceptions to this general rule are where through 
fraud, want of qpnmder&tion or .otherwise, no contract really 
can be said to exist. In such case parol evidence may be 
given which may effect a destruction of the written instrument. 
The effect of such parel -evidence would be to shpw that no 
contract, in fact, was made* Parol evidence is also admissible 
in cases where the written contract is upon its face ambiguous 
or incomplete. In such case parol evidence is permissible, 
not to contradict or vary the terms of the. written contract, 
but to explain awd clarify the same and to complete the agree- 



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15Q Hendricks v. Clements. 

First Department, February, 19*1. [Vol. 1*5. 

ment of which the writing is but a part. But before parol 
evidence may be received with reference to a written contract, 
it must clearly appear that the contract itself is incomplete 
and it must further appear that the parol evidence sought to 
be given is entirely consistent with and not contradictory of 
the writing. {Thomas v. Scutt, 127 N. Y. 133; Wightman v. 
New York Life Ins. Co., 119 App. Div. 496.) 

In the case at bar we have presented a clear, unambiguous and 
positive offer on the part of the defendant to employ the plain- 
tiff for three years at a salary of $12,000 per annum, together 
with an interest of ten per centum in the net profits of defend- 
ant's business in New York and Philadelphia, payable quarterly 
each year, and, further, a one-half interest in the net profits 
of defendant's linseed oil business in the New York territory. 
In acceptance of such written offer we have the clear and unam- 
biguous letter from plaintiff to defendant of June 16, 1917, 
stating that the plaintiff accepted the latter's proposition. 
While the defendant upon the trial contended that the said 
correspondence passing between the parties was tentative 
merely, and that it was the intention of the parties later, and 
after plaintiff had demonstrated his ability as a salesman, to 
enter into the three-year contract, the evidence does not dis- 
close that any further attempt was made to amplify the plain 
and apparently complete written contract expressed through 
such correspondence. Soon after August 1, 1917, pursuant to 
defendant's written request, plaintiff entered upon the dis- 
charge of his new duties, his salary dating from August 1, 1917. 
He was thereafter paid his salary of $1,000 a month and 
no suggestion was made but that the written communications 
between the parties fully expressed their contract, until 
plaintiff made claim to share in the net profits of defendant's 
business enterprises pursuant thereto. Not only must defend- 
ant's letter to plaintiff of June 11, 1917, offering plaintiff 
employment upon the terms therein specified, which were 
later accepted by the plaintiff in writing, be deemed to embody 
all talk and negotiations between the parties prior and at the 
time of said offer and acceptance, but under the very terms of 
defendant's said letter reference is made to a conversation 
occurring that day between the parties, and referring to such 
conversation the defendant states that " We will be very glad 



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Ai/tbbman v. Hoke Insurance Co, 151 

App. Div.] First Department, February, 1921. 

to enter into a business arrangement with you on the following 
basis: " Thus, so far as anything to the contrary appears, 
defendant's letter of June eleventh, upon its face, embraced 
all prior negotiations between the parties. I am of the opinion 
that the evidence does not present a case where parol evidence 
may be admitted to vary and contradict the terms of the 
plain written contract into which the parties entered, and that, 
therefore, the trial court erred in allowing the defendant to 
introduce such evidence. Plaintiff was manifestly prejudiced 
by the introduction of such testimony. 

Under the charge of the court the jury was permitted to 
find that the written instrument upon which the plaintiff 
relied did not embrace the real contract between the parties. 
To the court's instruction in this respect the plaintiff duly 
excepted, and I think thereby error is also presented requiring 
a reversal of the judgment herein. 

The judgment and order appealed from should be reversed 
and a new trial granted, with costs to the appellant to abide 
event. 

Clarke, P. J., Laughlin, Smith and Page, JJ., concur. 

Judgment and order reversed and new trial ordered, with 
costs to appellant to abide event. 



Jennie Ai/tbbman, Respondent, v. The Home Insurance 
Company op New York, Appellant. 

First Department, February 4, 1921. 

Insurance — Are insurance — policy on building and extension thereto 
occupied as store and dwelling as covering another building on 
same lot not so occupied — policy not ambiguous. 

A policy of fire insurance on a " brick building and extension thereto, occupied 
as store and dwelling, situate No. 529 East 11th Street," does not cover 
another brick building on the same lot standing in the rear of the building 
bearing the number mentioned where it appears that the other building 
was not occupied as a store and dwelling. 

The fact that on the rear of the lot on which the insured building stood there 
was situate another building not occupied as a store and dwelling does 
not create any ambiguity in the policy as to what was intended by the 
parties in issuing and accepting the policy. 

Lattghlih and Paox, JJ., dissent. 



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1 52 AlterMan v. Home Insurance Co. 

First Department, February, 1921. [Vol. 195. 

Appeal by the defendant; The Home Insurance Company 
of New York, from a determination and order of the Appel 
late Term of the Supreme Court, entered in the office of the 
clerk of the county of New York on the 18th day of October, 
1920, affirming a judgment of the Municipal Court of the 
City of New York, Borough of Manhattan, Fifth District, in 
favor of the plaintiff. 

Robert A. Fosdick, for the appellant. 

Jacob I. Berman, for the respondent. 

Merrell, J.: 

The issues in the Municipal Court were presented through 
an agreed statement of facts! Plaintiff brought th£ action to 
recover a loss of $406 conceded to have been sustained by her 
from destruction of real property by fire. The property in 
question was owned by the plaintiff and was situated upon 
plaintiff's lot at No. 529 East Eleventh street, in the borough 
of Manhattan, city of New York. 

It appears from the agreed statement of fapts that the 
plaintiff, on March 21, 1919, held two policies of fire insurance 
issued by the defendant for $5,000 each. By the 5th paragraph 
of the agreed statement of facts it was stipulated as follows: 
" The property insured in and by said policies was as follows: 
The brick building and extension thereto, occupied as store 
and dwelling, situate No. 529 East 11th Street, Borough of 
Manhattan, City of New York, including also all fixtures; 
also stoop, sidewalk, mason pad iropworlt in front and fences 
and yard fixtures in rear thereof." 

The premises upon which the insured property stood con- 
sisted of a lot twenty-five f ept wide ^in front and Jcear, by one 
hundred feet in depth on both sides, and for thirty years there 
were located on said premises two buildings, namely, one, 
which was the larger building, of brick, four stories in height, 
located on the front of said premises at No. 529 East Eleventh 
street. Another building, which was smaller, but also of brick, 
two stories in height, stood on the rear of said premises, distant 
from the first above-mentioned building about twenty-five 
feet, and physically entirely separate and detached from the 
main building facing the street. Access to said building, in 



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Altebman v. Home Insurance Co. • 153 

App. Div.] First Department, Fehruary, 1921. 

the rear from the street was only by means of passing through 
the main building located on the front of said premises. The 
policies of insurance were issued without any inspection or 
independent examination of the premises at the time when 
said policies were issued. 

It was further stipulated and agreed that at and prior to 
the issuance of said policies of fire insurance the defendant 
had an atlas or map of buildings in the city of New York in 
its office from which it correctly appeared that there was a 
building on the front and another building on the rear of said 
premises, and it then knew of the existence of said buildings, 
and that the defendant at the time of issuing the respective 
policies, based its premium of insurance upon the rate fixed 
by the New York board of fire underwriters for the building 
used for store and dwelling purpose^, and that no extra rate 
of premium for insurance would have been charged had said 
policies specifically described the front and rear buildings 
aforesaid, in which case the amount of insurance on each build- 
ing would have been expressed in the policies and apportioned 
between the buildings so specifically described. 

On March 21, 1919, while both said policies were in force 
and effect, a fire occurred in the building located on the rear 
of said premises. No damage whatever was caused by said 
fire to the building located in the front of said premises, or 
any part thereof, nor to any of the fixtures, stoop, sidewalk, 
mason or ironwork in front or fences in yard or yard fixtures 
in the rear of the same. 

It was further stipulated in the said agreed statement of 
facts that on the dates of the issuance of said policies of 
insurance the only building located on said premises marked 
with the street number " 529 " was the main building in the 
front of said premises facing the street. 

It was also further stipulated and agreed by the parties 
that on the date of the issuance of said policies the only build- 
ing located on said premises occupied as a store and dwelling 
was the building located on the front of said premises. 

The agreed statement of facts further shows that the net 
cash value at the date of said fire of the building located 
on the front of said premises was $9,000, and of the building 
located on the rear thereof, $2,500. After the fire and within 



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154 * Alterman v. Home Insurance Co. 

First Department, February, 1921. [Vol. 1*5. 

the time prescribed by said policies the plaintiff duly presented 
and filed with the said defendant due proofs of loss in the forms 
accepted by the defendant, which contained a schedule of 
the damage by fire duly executed and verified by the plaintiff 
as the assured in accordance with the form required by said 
polices, and thereafter an appraisal agreement in accordance 
with the form issued by the defendant was duly executed and 
filed with said defendant; that the appraisers thereafter fixed 
said loss and damage to the plaintiff by said fire to the build- 
ing located in the rear of said premises at the sum of $400; 
that said appraisal was made as provided by the terms of 
said policies, but without prejudice to the defendant with 
respect to any of its rights. 

The defendant refused to pay plaintiff the amount of her 
said loss and damage on the specific ground that the policies 
covered only the brick building in the front of said premises 
occupied as a store and dwelling; whereas the fire occurred 
in and damage was thereby caused to the building in the rear 
of said premises, and defendant duly notified the plaintiff 
that by reason thereof it denied liability for the loss suffered 
by this plaintiff as aforesaid. 

It is the contention of the plaintiff, and the trial court held, 
that the policies of insurance in question covered not only 
the brick building on the front of said premises, occupied as a 
store and dwelling, but also covered the building damaged by 
fire, and granted judgment in plaintiff's favor for the amount 
of her loss as fixed by said appraisers. The Appellate 
Term, by its determination, has affirmed the judgment of the 
Municipal Court. (112 Misc. Rep. 445.) 

I am of the opinion that the judgment of the Municipal 
Court and the order of the Appellate Term affirming the same 
must be reversed. The policies of insurance covered only 
the brick building and extension thereto, occupied as store and 
dwelling, situate at No. 529 East Eleventh street, borough of 
Manhattan, city of New York, including also all fixtures; all 
stoop, sidewalk, mason and ironwork in front and fences and 
yard fixtures in the rear thereof. No other property of the 
plaintiff was embraced in the policies. It was stipulated by 
the parties that no damage whatever was by said fire caused 
to the building thus covered, nor to any of the fixtures, stoop, 



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Alterman v. Home Insurance Co. 155 

▲pp. Div.] First Department, February, 1921. 

sidewalk, mason or ironwork in front, or fences in yard or yard 
fixtures in the rear of the same. It was further stipulated 
and agreed by the parties that on the date of the issue of 
said policies the only building located on said premises occupied 
as a store and dwelling was the building located on the front 
of said premises, and which, as before stated, it was stipulated 
was not damaged as the result of the fire. It seems to me that 
the particular description of the insured property as the brick 
building and extension thereto, occupied as store and dwelling, 
situate at No. 529 East Eleventh street, accompanied by the 
further stipulation that said building was the only building 
located on said premises which was occupied as a store and 
dwelling, and the fire not having occurred therein, and the 
same being uninjured, are insurmountable obstacles in the 
path of plaintiff's recovery in this action. Had the descrip- 
tion of the insured property been, " the brick building, occupied 
as a store and dwelling and extension thereto/ ' a different 
situation would have been presented. Had the insured 
property been thus described, the numerous authorities upon 
which the respondent relies, and which the learned Appellate 
Term cites in support of its determination, to the effect that 
the term " extension " is synonymous with the term " addi- 
tion," and that where a policy covers property and its exten- 
sions and additions it is not necessary, in order to cover out- 
buildings or structures constituting such additions or exten- 
sions that the same should be physically connected with the 
main property covered by the policy of insurance, would be 
pertinent. (Oertner v. Glens Falls Ins. Co., 193 App. Div. 
836; Ideal Pump & Mfg. Co. v. American Central Ins. Co., 
152 S. W. Rep. 408; Rickersm v. Hartford Fire Ins. Co., 149 
N. Y. 307; Maisel v. Fire Association, 59 App. Div. 461.) But 
here the description is " the brick building and extension 
thereto, occujned as store and dwelling." Concededly the build- 
ing damaged by the fire here was not occupied as a store and 
dwelling, and, therefore, even if it be regarded as an extension 
to the main building, it was not covered by the policies of 
insurance. To what use the building damaged was put by the 
owner does not appear. So far as the record discloses, it may 
have been devoted by the plaintiff to a use entirely foreign to 
store and dwelling purposes. 



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156 Breckenridge v. Gary. 

First Department, February, 1921. [Vol. 195. 

The learned Appellate Term has stated, and the respondent 
contends, that there is an ambiguity in the description of the 
property intended to be covered by these policies, and that, 
therefore, under the doctrine of Herrman v. Merchants 9 Ins. Co. 
(81 N. Y. 184), Alien v. St. Louis Ins. Co. (85 id. 473), and 
kindred decisions, the policies should be construed most 
favorably to the insured. The difficulty is that I find no 
ambiguity in the policies in suit. The description of the 
insured property.was very precise as, " The brick building and 
extension thereto, occupied as store and dwelling, situate No. 
529 East 11th Street, Borough of Manhattan, City of New 
York," etc. The fact that on the rear of the lot on which the 
insured building stood there was situate another building not 
occupied as a store and dwelling, it seems to me, creates no 
ambiguity as to what was intended by the parties in issuing 
and accepting the policies in suit. 

The determination of the Appellate Term should be reversed, 
with costs, the judgment of the Municipal Court reversed, with 
costs, and the complaint dismissed, with costs. 

Clarke, P. J., and Smith, J., concur; Laughun and Page, 
JJ., dissent. 

Determination reversed, judgment of Municipal Court 
reversed and complaint dismissed, with costs to defendant in 
all courts. 



George P. Breckenridge, Appellant, v. Melbeet B. Cart 
and Adele LeC. Adams, as Administratrix, etc., of John 
H. Miller, Deceased, Respondents. 

First Department, February 4, 1921. 

Equity — accounting between members of law ' firm — right to 
accounting as to funds paid to firm conditionaUy and held by one 
member in trust to await happening of condition — right of 
plaintiff to Judgment where condition happened after action 
commenced — costs as discretionary. 

A member of a dissolved law partnership may maintain a suit to compel an 
accounting for moneys received by the firm as fees conditionally on the 
happening of a future event, where said moneys were given to one of the 



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Brbckenbdckhc v. Gary. 157 

App. Dir.] Ftwt Department, February, 1031. 

members of the firm, with the consent of the others, to be held in trust for 
the firm, to await the happening of the condition, and by him deposited in 
his personal account and to a certain extent squandered by him, though 
at the time of the commencement of the suit the condition had not 
happened which would give the firm the absolute title to the moneys. 

Said condition harm* been fulfilled before the trial of the suit it was error 
' for the court to dismiss the complaint, since the action being in equity* 
the judgment should be based on conditions existing at the time of its 
rendition. 

In equitable actions costs are always in the discretion of the court, and 
the court properly might refuse the plaintiff costs because of the fact that 
the plaintiffs claim to share in the said moneys had not ripened at the 
time the action was commenced. 

Appeal by the plaintiff, George P. Breckenridge, from a 
judgment of the Supreme Court in favor of the defendants, 
entered in the office of the clerk of the county of New York 
on the 16th day of July, 1920, upon the decision of the court 
rendered after a trial at the New York Special Term. 

George P. Breckenridge, in person. 

Frank J. McEwen of counsel [Cary, MiOer <fc McEwen, 
attorneys], for the respondents. 

Mebrell, J. : 

This action is in equity for an accounting between 
copartners. 

On or about April 30, 1916, the plaintiff, the defendant 
Melbert B. Cary, and one John H. Miller, since deceased, all 
attorneys and counselors at law, practicing their profession 
in the city and county of New York and elsewhere, entered into 
a copartnership for the practice of law under the firm name 
and style of Cary, Miller & Breckenridge. Pursuant to such 
partnership agreement the plaintiff was entitled to one-third 
of any fees received by said firm in any matters in which he 
assisted either or both of his copartners* Said copartnership 
continued until May 1, 1917, when the same was dissolved by 
mutual consent. 

In March, 1917, said firm represented one McAlpin in the 
prosecution of a claim against the Matanzas Blaugas Company 
of Cuba for moneys loaned to the amount of $4,500. On or 
about March 6, 1917, the said firm received of McAlpin certain 



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158 BBECKENMDGE V. CARY. 

First Department, February, 1921. [Vol. 195. 

moneys amounting to over $1,500, and it was thereafter agreed 
that $1,000 thereof should be retained by the said firm as its 
fee to reimburse it for expenses and services in connection 
with the prosecution of said McAlpin claim, but that said 
moneys should not belong to said firm until certain bonds of 
the said Blaugas Company were delivered to McAlpin in" pay- 
ment of his said claim for moneys loaned. The $1,000 which 
said law firm was to receive in payment for its expenses and 
services in connection with said matter were deposited by the 
defendant Cary to the credit of his personal account in the 
Empire Trust Company on or about the date of the receipt 
thereof by said firm. Such deposit was made with the consent 
of all three members of the firm including the plaintiff, and 
upon the understanding that the defendant Cary should hold 
the same in trust for himself and his copartners until the deliv- 
ery of said bonds of the Blaugas Company to McAlpin, when 
the firm should be entitled to use and appropriate said moneys. 
The evidence shows that the defendant Cary failed to keep 
said balance thus deposited to the credit of his personal 
account intact, and that, with the exception of one or two 
months succeeding said transaction, his personal account in 
said trust company was much less than the amount of the 
trust fund thus held by him, his balance in said trust company 
at the end of April, 1917, being less than $300. McAlpin died 
before the consummation of the settlement of his claim by the 
delivery of the bonds. This action was commenced by the 
plaintiff for an accounting prior to the delivery of said bonds. 
Prior to the commencement of this action John H. Miller, one 
of said copartners, died, and the plaintiff joined the admin- 
istratrix of his deceased partner with the defendant Cary .as 
defendants herein. Evidence was given upon the trial that 
on the very day when the trial commenced the Blaugas bonds 
were delivered to the personal representatives of McAlpin, 
and thereupon the plaintiff became entitled to share in the 
proceeds of the $1,000 held by the defendant Cary in trust. 
The evidence also disclosed that prior to the commencement of 
the action the plaintiff had received by way of advancements 
upon his share in said $1,000 held in trust by the defendant 
Cary the sum of $135.55, and it, therefore, appeared that at 
the time of the trial, the said copartnership being then entitled 



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Beeckenbidob v. Cart. 159 

App. BiT.] First Department, February, 1991. 

to appropriate said moneys held in trust by the defendant Cary , 
the plaintiff was entitled to one-third of said moneys, less the 
advancements to him, leaving $197.78 his due. At the close 
of the evidence the court held that the plaintiff was entitled to 
judgment against the defendants for said balance his due, but 
without costs, and directed that a decree be submitted accord- 
ingly. Notwithstanding the announcement of the learned 
court at the close of the evidence, the court thereafter made a 
decision awarding defendants judgment dismissing the plain- 
tiff's complaint, with costs, and judgment was directed accord- 
ingly. The justice presiding handed down a brief memoran- 
dum accompanying such decision to the effect that at the 
commencement of the action the money in suit had not been 
earned, and hence that the plaintiff had no cause of action; 
that the defendants were within their rights in refusing plain- 
tiff's demands, and that since the suit was based on such 
refusal, plaintiff's action must fail. In the opinion of the court 
the fact that plaintiff's immature claim had subsequently 
ripened could not avail the plaintiff in this action, and that 
should the defendants, at the time of, the decision, refuse a 
similar demand by plaintiff, plaintiff would then have a cause of 
action; that defendants expressed their willingness and readi- 
ness to pay the amount then concededly due plaintiff. Upon 
such grounds the court dismissed the plaintiff's complaint. 

I think the court clearly erred in thus disposing of the case. 
It seems to me entirdy clear that the plaintiff, who was con- 
cededly interested in the $1,000, had a right of action at the 
time of the commencement of this action, to have determined 
his interest in said fund. It is always the right of one copartner 
to demand of the other members of his firm an accounting as 
to matters in which they are jointly interested. Even though 
plaintiff's claim to his share in the moneys held in trust by the 
defendant Cary had not ripened at the time of the commence- 
ment of the action, nevertheless, the evidence showing that 
the defendant Cary had deposited these moneys to his personal 
account, had checked therefrom and depleted said account, 
practically wiping out any balance in the trust company 
in which said moneys were deposited to his credit, amply 
justifies plaintiff's demand for an accounting by his former 
copartners. 



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160 Brbckenridgb v. Gary. 

First Department, February, 1021. [VoL 196. 

" ' '■■'■ ' ' i 

Moreover, this action being in equity, the judgment of 
the court should properly be based upon conditions existing 
at the time of the rendition of the judgment, and courts of 
equity uniformly base their judgments accordingly* Can- 
cededly, at the time of the rendition of the judgment herein, 
the $1,000 had been earned by plaintiff's said firm, and plain- 
tiff was then concededly entitled to share therein. It would 
be an idle and useless ceremony to compel the plaintiff to 
bring a new action to obtain rights which had clearly ripened 
prior to the rendition of judgment. In equitable actions, costs 
are always in the discretion of the court, and the court prop- 
erly might refuse the plaintiff costs as is stated at the close of 
the evidence in this case because of the fact that plaintiff's 
claim to share in the said moneys had not ripened at the time 
the action was commenced, but I do not think the court 
was justified in refusing the plaintiff relief to which he was 
clearly entitled prior to the decree herein. {Miltiken, v. 
McGarrah, 164 App. Div. 110.) Were plaintiff's action at law, 
the dismissal of the complaint would have been entirely proper, 
but in equitable actions, such as this, the plaintiff should 
receive whatever relief was his due at the time of the trial. 
(Merrihew v. Kingsbury, 150 App. Div. 40.) 

The findings of fact contained in the decision of the court 
herein inconsistent with the views here expressed should be 
disapproved, and the judgment of the court below should be 
reversed, and plaintiff, upon appropriate findings of fact and 
conclusions of law, should have judgment against the defend- 
ants for the relief demanded in the complaint, without costs. 

Clarke, P. J., Laughlin, Dowung and Grbjenbaum, JJ., 
concur. 

Judgment reversed and judgment ordered for plaintiff for 
the relief demanded in the complaint, without costs. Settle 
order on notice. 



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Susquehanna S. S. Co., Inc., v. Andersen & Co., Inc. 161 



App. Div.] First Department, February, 1901. 



Susquehanna Steamship Company, Inc., Respondent, p. 
A. O. Andersen & Co., Inc., Appellant. 

First Department, February 4, 1921. 

Conflict of laws — when State court has no right to enjoin proceed- 
ings in United States court — inability of plaintiff to set up aU 
its defenses or counterclaims — multiplicity of actions. 

In a suit for an accounting and for an injunction restraining the defendant 
from prosecuting two actions in the United States District Court, one 
in the Southern District of New York to recover from the plaintiff and 
others an amount claimed to be due under a charter party, and the other 
in the Eastern District of Virginia to recover from the plaintiff upon the 
same cause of action in which a writ of foreign attachment was issued, 
and a steamship belonging to the plaintiff seized, held, that the plaintiff 
has not established any ground for an injunction, and that the defendant 
acted with diligence and the Federal courts have jurisdiction of the par- 
ties and of the subject-matter of the litigation and ean do full justice 
between the parties. 

The fact that the plaintiff has not been able to set up all the defenses or 
counterclaims to which it thinks it is entitled is no ground for interfering 
with the orderly procedure of a court which has power in appropriate 
actions therein to determine all the claims of every party to the controversy. 

Nor is there merit in the plaintiff's claim that a multiplicity of actions 
furnishes a basis for the relief sought. 

Appeal by the defendant, A. O. Andersen & Co., Inc., 
from an order of the Supreme Court, made at the New York 
Special Term and entered in the office of the clerk of the county 
of New York on the 20th day of December, 1920, granting 
plaintiff's motion for an injunction pendente lite. 

Herman S. Hertwig of counsel [John A. McManus with him 
on the brief; Duncan & Mount, attorneys], for the appellant. 

Ahrin C. Cass of counsel [Cass & Apfel, attorneys], for the 
respondent. 

Dowling, J.: 

The controversy between these parties arises out of the 
charter of the steamship Lydia by the Lydia Steamship Com- 
pany to F. E. Crotois on September 12, 1919, for six months 
Afp. Div.— Vou CXCV. 11 



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162 Susquehanna S. S. Co., Inc., v. Andersen & Co., Inc. 

First Department, February, 1921. [Vol. 195. 

at a monthly charter hire of $59,380, payable in advance. 
Simultaneously with the making of this charter, the defend- 
ant entered into a written agreement with the Lydia Steamship 
Company, as to the legal effect of which there is a dispute. 
Plaintiff claims that the instrument is an original promise by 
defendant to pay the amount of the charter here in full to 
plaintiff. Defendant claims that it agreed only to attend to 
the collection of the charter hire, to advance to the Lydia 
Steamship Company the amount of the charter hire when it 
fell due and to reimburse itself therefor when the amount was 
collected from Crotois or his guarantors, but without any 
liability for the debt. Under date of September 13, 1919, 
defendant was directed to make its payments under the agree- 
ment to the plaintiff, to which it did in fact 'pay two months' 
charter charges. Crotois became insolvent and the claim was 
then made that defendant was under an absolute duty to pay 
the charter hire, which claim it rejected. Thereupon the 
Lydia Steamship Company and the defendant entered into a 
written agreement on November 28, 1919, by which in effect 
the ship was to be turned over to defendant to operate as 
agent for the balance of the charter term and it was to continue 
to pay the monthly charter payments without prejudice to 
its rights. When the period of the charter had expired, there 
was to be an effort made to work out an amicable adjustment 
of the questions involved between the parties, and if such 
adjustment could not be had, the questions involved were to 
be settled by arbitration or by suit. This agreement was 
assigned by the Lydia Steamship Company to plaintiff on 
February 24, 1920. All the stock in both these companies is 
owned by Frank Auditore and Joseph Auditore. 

The vessel was # operated under this agreement. In Decem- 
ber, 1919, defendant made a charter for the vessel with plaintiff 
to carry a cargo of sugar (which plaintiff had contracted to 
carry for Lamborn & Co.) from Cuba to Holland in February, 
1920, for the sum of $147,867.46, payable ten days after 
receipt of cable advice from the master of the ship that the 
vessel had been loaded and bills of lading signed. Disputes 
arose as to the party who would sign the contract of carriage, 
but it was signed ultimately by plaintiff, with an assignment 
to defendant of sufficient of the moneys to become due from 



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Susquehanna S. S. Co., Inc., v. Andersen & Co., Inc. 163 

App. I>iv.] First Department, February, 1921. 

Lamborn to plaintiff to pay the charter hire due from plain- 
tiff to defendant, which assignment Lamborn & Co. refused to 
recognize. Being called upon by defendant for further assur- 
ance of the freight charges, it was given by the personal 
guaranties of Frank Auditore and Joseph Auditore. The 
plaintiff on February 24, 1920, took assignments of all the 
rights of the Lydia Steamship Company under the Crotois 
charter, the agreement of September twelfth between the 
Lydia Company and defendant and the agreement of Novem- 
ber twenty-eighth. Advice was received on February 16, 
1920, that the vessel had been loaded and the bills of lading 
signed, as the result of which, under the terms of the charter, the 
charter hire is claimed to have become due from plaintiff to 
defendant on February 26, 1920. Defendant claims that 
although it had complied with ail its duties under its agree- 
ment and had made payments amounting to $296,900, and had 
further incurred over $20,000 of obligations in the operation 
of the Lydia, the plaintiff and the Auditores refused to pay 
the charter hire that fell • due on February twenty-sixth. 
Defendant being unable to obtain any part of the charter hire, 
notified plaintiff and the Auditores on March 4, 1920, that it 
was unable to operate the vessel further under the circum- 
stances, and abandoned it in Amsterdam, Holland. There 
are numerous details of the dealings between the parties to 
which it is unnecessary to refer, but it is apparent that the 
question of who was gvulty of the breach of the agreement 
between the parties is one which will be bitterly contested and 
will involve a multitude of conflicting claims. There is also 
a controversy as to the legal effect of the instruments executed 
by the parties. Many questions must be decided before the 
legal rights of the parties can be determined. 

The defendant lost no time in taking legal action to enforce 
its claimed right under the charter to carry the cargo of 
sugar. 

(1) On March 4, 1920, defendant filed a libel in the United 
States District Court for the Southern District of New York 
to recover from the Susquehanna Steamship Company (this 
plaintiff) and Frank Auditore and Joseph Auditore as guar- 
antors, the sum of $147,867.45, claimed to be due under the 
charter party of December 29, 1919. 



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164 Susquehanna S. S. Co., Inc., v. Andersen & Co., Inc. 

First Deportment, February, 1921. [Vol. 195. 

(2) On March 5, 1920, defendant filed a libel in the United 
States District Court for the Eastern District of Virginia to 
recover from the Susquehanna Steamship Company upon the 
same cause of action, and in that suit issued a writ of foreign 
attachment and seized the steamship Svsquehanna belonging 
to said company and placed a United States marshal on board 
and plaintiff was compelled to give a stipulation for value for 
$147,867.37 to release the vessel and permit it to sail, giving 
a surety company bond at an expense to it of $1,400. 

(3) Defendant commenced an action in the Supreme Court, 
New York county, against the firm of Lamborn & Co. to 
recover the sum of $147,867.37, upon the alleged assignment 
of freight moneys, dated December 29, 1919. 

It is not necessary to enter into a consideration of the 
various steps already taken in these actions. On November 

11, 1920, plaintiff commenced this action in the Supreme 
Court, New York county, setting forth at length all the trans- 
actions between the parties and the pendency of the three 
actions referred to and asked judgment as follows: 

(1) That the agreement of the defendant dated September 

12, 1919, is a good and valid contract on its part to pay the 
charter hire as the same should become due to the Lydia 
Steamship Company, Inc., under its charter with F. E. Crotois 
(Exhibit A), attached to this complaint. 

(2) That the defendant defaulted and breached its agree- 
ment by a refusal to pay charter moneys which became due 
November 27, 1919, and by its insistence upon the making of 
said agreement of November 27, 1919, and it further breached 
its agreement by the failure to pay the moneys due for the 
month of February 27 to March 27, 1920, and again for the 
month of March twenty-seventh to April twenty-seventh, and 
again for the time April 27 to May 21, 1920, and it is now in 
default therefor. 

(3) That the charter of December 29, 1919, for the steamship 
Lydia by the defendant to the plaintiff was made by the 
defendant as the managing agent of the plaintiff and without 
any financial interest of the defendant therein except in the 
carrying out of its agency so long as such agency should 
continue. 

(4) That the agency of the defendant under said charter 



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Susquehanna S. S. Co., Inc., v. Andersen & Co., Inc. 165 

App. Biv.] First Department, February, 1921. 

terminated by its breach of contract and by agreement of the 
parties prior to the commencement of this action in the United 
States District Court for the Southern District of New York 
against this plaintiff to recover alleged charter hire and prior 
to its commencement of a similar action in the United States 
District Court for the Eastern District of Virginia, and prior 
to its commencement of its action for alleged assignment of 
freight moneys against Lamborn & Co. in the Supreme Court, 
New York county, and thereby this plaintiff became released 
and discharged from its obligation to pay said sum of 
$147,867.37 or any part thereof sued for in said actions 1 and 
2 in the United States District Court. 

(5) That the assignment by the Lydia Steamship Company, 
Inc., of February 24, 1920, to this plaintiff was a good and 
valid assignment and transferred all the rights of the Lydia 
Steamship Company against said defendant and by reason 
thereof this plaintiff became the principal under said charter 
between A. O. Andersen & Co., Inc., as agent and the Sus- 
quehanna Steamship Company, Inc., dated December 29, 
1919. 

(6) That the assignment, request or instruction of Lam- 
born & Co. to pay freight moneys to the defendant dated 
December 29, 1919, was taken by said defendant as a manag- 
ing agent for the Lydia Steamship Company, Inc., and that 
it had no financial right, claim or interest in said moneys and 
was taken conditional upon the acceptance thereof by the said 
Lamborn & Co. and became lapsed and void through the agree- 
ment of the parties subsequent thereto and the substitution 
of the guaranty of Frank and Joseph Auditore dated January 
30, 1920 (Exhibit F), attached to this complaint. 

(7) That both the obligation of Lamborn & Co. to pay 
said sum of $147,867.37 to the defendant or of Frank and 
Joseph Auditore to carry out their guaranty dated January 30, 
1920, lapsed and became void by the termination of the agency 
of the defendant to act for said Lydia Steamship Company, 
Ine. 

(8) That there are no moneys due from this plaintiff to 
the defendant, but that upon the contrary the plaintiff have 
judgment against the defendant for the sum of $59,063.59 
charter moneys due to it as the assignee of the Lydia Steam- 



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166 Susquehanna S. S. Co., Inc., v. Andersen & Co., Inc. 

First Department, February, 1821. [Vol. 195. 

ship Company, Inc., under the agreement of the defendant 
dated September 12, 1919. 

(9) That the defendant be required to account for all the 
earnings and disbursements received and made by it as the 
agent of the steamship Lydia under the terms of the agreement 
of November 28, 1919, and be required to turn over to and 
account to this plaintiff as the assignee of said Lydia Steam- 
ship Company for any balance so collected by it. 

(10) That the defendant be forever enjoined and restrained 
from prosecuting said actions in the United States District 
Court for the Southern District of New York and in the 
United States District Court for the Eastern District of 
Virginia to recover the sum of $147,867.37 or any part thereof, 
and that it be permanently enjoined and restrained from suing 
this plaintiff for any charter moneys claimed under the charter 
between the defendant as agent and this plaintiff dated 
December 29, 1919 (Exhibit D), attached to this complaint. 

(11) That the defendant be permanently enjoined and 
restrained from bringing its action against Arthur H. Lam- 
born and others comprising the firm of Lamborn & Co. to 
recover the said sum of $147,867.37 under the said request, 
instruction or assignment dated December 29, 1919 (Exhibit 
E), attached to the complaint. 

(12) That the plaintiff have such other and further relief 
as to the court may seem just, together with the costs and 
disbursements of this action. 

On November 12, 1920, plaintiff obtained an order to 
show cause why an injunction pendente lite should not issue 
restraining defendant from bringing to trial its three suits, and 
meantime their prosecution was enjoined. On December 18, 
1920, the order was made whereby upon plaintiff's giving an 
undertaking in the sum of $165,000, defendant was enjoined 
and restrained during the pendency of this action from pro- 
ceeding further with the prosecution of the suit brought by 
it in admiralty in the United States District Court for the 
Southern District of New York against the plaintiff and 
Frank Auditore and Joseph Auditore to recover the sum of 
$147,867.37 and interest; also from proceeding further with 
the prosecution of the suit brought by it against the plaintiff 
in admiralty in the United States District Court for the Eastern 



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Susquehanna S. 8. Co., Inc., v. Andersen & Co., Inc. 167 

App. Div.] First Department, February, 19(81. 

District of Virginia, to recover the sum of $147,867.37 with 
interest; also from proceeding further in the prosecution of 
the suit brought by it in the New York Supreme Court, New 
York comity, against Arthur H. Lamborn and others, copart- 
ners trading under the firm name and style of Lamborn & 
Co., to recover $147,867.37 with interest. 

Plaintiff concedes that the general rule as to the right of 
State courts to enjoin proceedings in the United States court 
is as laid down by Judge Willabd Bartlett in BeardsUe v. 
Ingraham (183 N. Y. 411) as follows (at p. 417): " The general 
rule that there is no authority in the State courts to enjoin 
proceedings in the courts of the United States is laid down as 
distinctly as a judicial proposition can be declared and the 
correctness of the conclusion finds ample support in the author- 
ities cited. (See Peck v. Jenness, 7 How. [U. S.] 612, 624; 
Riggs v. Johnson County, 6 Wall. 166; 2 Story's Equity Jur. 
§ 900; Moran v. Sturges, 154 U. S. 266.) In the case last cited 
(which was a reversal of Matter of Schuyler's Steam Tow Boat 
Co., 136 N. Y. 169), the question was whether it was within the 
power of a State court to restrain the libellants in a District 
Court of the United States from prosecuting their libels, and 
the chief justice declared the general rule to be ' that State 
courts cannot enjoin proceedings in the courts of the United 
States/ and reviewed a large number of authorities sustaining 
that doctrine. Furthermore, it is * a rule of general application 
that where property is in the actual possession of one court of 
competent jurisdiction, such possession cannot be disturbed 
by process out of another court.' {Moran v. Sturges, supra, 
on p. 274.)" 

But plaintiff claims that there is an exception to this rule, 
namely, that the right to enjoin exists where the United States 
courts have not jurisdiction to properly try the issue and to 
do justice between the parties, and an irreparable injury will, 
therefore, result. And it calls attention to the decision handed 
down by the Supreme Court of the United States on December 
6, 1920, in WeUs Fargo & Co. v. Taylor (254 U. S. 175; 41 Sup. 
Ct. Rep. — ). Therein the court in sustaining a permanent 
injunction against the enforcement of a judgment obtained "in a 
court of the State of Mississippi, obtained on the ground that 
an injustice was created against the company by the judgment, 



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168 Susquehanna 8. S. Co., Inc., v. Andersen & Co., Inc. 

First Department, February, 1921. [Vol. 105. 

considered the effect of section 265 of the Judicial Code (36 
U. S. Stat, at Large, 1162), formerly section 720 of the United 
States Revised Statutes (U. S. Comp. Stat. 1916, § 1242), 
providing that " The writ of injunction shall not be granted 
by any court of the United States to stay proceedings in 
any court of a State, except in cases where such injunction 
may be authorized by any law relating to proceedings in 
bankruptcy." The court said: " The provision has been in 
force more than a century and often has been considered by 
this court. As the decisions show, it is intended to give 
effect to a familiar rule -of comity, and, like that rule, is limited 
in its field of operation. Within that field it tends to prevent 
unseemly interference with the orderly disposal of litigation 
in the State courts and is salutary; but to carry it beyond that 
field would materially hamper the Federal courts in the dis- 
charge of duties otherwise plainly cast upon them by the 
Constitution and the laws of Congress, which, of course, is 
not contemplated. As with many other statutory provisions, 
this one is designed to be in accord with, and not antagonistic 
to, our dual system of courts. In recognition of this it has come 
to be settled by repeated decisions and in actual practice, that, 
where the elements of Federal and equity jurisdiction are 
present, the provision does not prevent the Federal courts from 
enjoining the institution in the State courts of proceedings to 
enforce local statutes which are repugnant to the Constitution 
of the United .States [citing cases], or prevent them from 
maintaining and protecting their own jurisdiction, properly 
acquired and still subsisting, by enjoining attempts to frus- 
trate, defeat or impair it through proceedings in the State 
courts [citing cases], or prevent them from depriving a party, 
by means of an injunction, of the benefit of a judgment obtained 
in a State court in circumstances where its enforcement will 
be contrary to recognized principles of equity and the standards 
of good conscience " (citing cases). 

We deem it sufficient for the disposition of this appeal to 
hold that plaintiff has not established any ground for the 
injunction sought. Defendant acted with diligence, and 
selected its forum for the determination of its claim against 
plaintiff. The court in which it commenced its actions had 
jurisdiction of the parties and of the subject-matter of the 



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Susquehanna S. S. Co., Inc., t/. Andersen & Co., Inc. 169 

App. DiT.] First Department, February, 1921. 

litigation. In one of these actions defendant secured an 
attachment of plaintiff's property and obtained an undertak- 
ing to secure any judgment it might obtain. I am unable 
to find any support for the contention that the United States 
courts cannot do full justice between the parties, all of whom 
are subject to their jurisdiction. The fact that plaintiff has 
not been able in any particular case to set up all the defenses 
or counterclaims to which it thinks it is entitled is no ground 
for interfering with the orderly procedure of a court which 
has power in appropriate actions therein to determine all the 
claims of every party to this controversy. The proper tri- 
bunal to administer justice between them is the Federal 
court, which already has jurisdiction and wherein defendant 
has already obtained security for its claim. The arguments 
advanced by plaintiff do not satisfy us that any injustice can 
possibly result to it from the prosecution of these actions or 
that it will be denied the protection of any of its rights by a 
lack of power in "the Federal courts. Nor is there merit in 
the claim that a multiplicity of actions furnishes a basis for 
the relief sought. There are but two actions brought by 
defendant wherein plaintiff is a party defendant and one of 
these was brought that the liability of the Auditores, who own 
all the stock of plaintiff, as guarantors upon its agreement, ♦ 
might be determined. 

The order appealed from should be reversed, with ten dollars 
costs and disbursements, and the motion denied, with ten 
dollars costs. 

Clarke, P. J., Page and Greenbaum, JJ., concur. 

Latjohun, J. (concurring) : 

Both comity and inability to enforce the order or decree 
forbid one court from attempting to interfere with property 
over which another court of competent jurisdiction has 
assumed jurisdiction by taking the property into custodia 
legis, or from attempting to enjoin a court of competent juris- 
diction or proceedings therein; but my understanding of the 
law is that, without contravening these principles, in a proper 
case a party, over whom a court has acquired jurisdic- 
tion, may be stayed from prosecuting an action or proceeding 



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170 Sunrise Lumber Co., Inc., v. Biery Lumber Co. 

Second Department, January, 1921. [Vol. 195. 

in another court, whether State or Federal, which has not 
sufficient jurisdiction to hear and decide all of the issues' 
between the parties and to grant full and complete relief with 
respect thereto. The opinion of Mr. Justice Dowling seems 
open to implications to the contrary, and, therefore, with the 
expression of these views I concur in the result. 

Order reversed, with ten dollars costs and disbursements, 
and motion denied, with ten dollars costs. 



Sunrise Lumber Company, Inc., Respondent, v. Homer D. 
Biery Lumber Company, Appellant. 

Second Department, January 14, 1921. 

Process — Code of Ciyll Procedure, section 432, subdivision 1, con- 
strued — service of summons and complaint on president of 
foreign corporation temporarily within State — service set aside 
where corporation not doing business within State — when cor- 
poration not doing business within State. 

Under subdivision 1 of section 432 of the Code of Civil Procedure the 
president of a foreign corporation may be served with a summons and 

' complaint within this State only when said corporation is properly a 
defendant; that is, when it is doing business within the State. 

In an action against a foreign corporation the service of a summons and 
complaint on the president while he was temporarily, stopping in this 
State, not on the business of the defendant, should be set aside where it 
appears that the defendant had then in this State no agent to accept 
service of process, no bank account here, held no directors' or other meet- 
ings here and had no property within the State, and the only basis for 
the contention that said defendant was doing business here was that, on 
one occasion, the defendant's sales manager solicited and received an 
order for goods from the plaintiff which was confirmed by letter from the 
defendant's home office, and that the defendant maintained a fiscal agent 
here for the purpose of selling its corporate stock, and at one time pub- 
lished here a notice of a declaration of dividend which was dated at its 
home office. 

The casual and occasional soliciting of orders within the State does not 
constitute the doing of business within the State within the jurisdictional 
sense. 

Appeal by the defendant, Homer D. Biery Lumber Com- 
pany, appearing specially herein for the sole purpose of moving 



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Sunrise Lumber Co., Inc., v. Bdbby Lumber Co. 171 

App. Div.] Second Department, January, 1901. 

to set aside the service of the summons and complaint herein, 
from an order of the Supreme Court, made at the Kings 
Special Term and entered in the office of the clerk of the 
county of Kings on the 20th day of October, 1920, denying 
defendant's motion to set aside the service of the summons 
and complaint. 

James H. Purdy, Jr. [A. F. Von Bernuth with him on the 
brief], for the appellant. 

Charles Soble, for the respondent. 

Mills, J.: 

There really is no dispute about the facts in this case, 
although there is some variance between the opposing affidavits 
as to the inferences to be deduced from the specific facts stated. 

Plaintiff is a domestic corporation, and defendant a for- 
eign one; the latter organized under the laws of Delaware. 
Defendant's president, on August 19, 1920, was temporarily 
stopping at the Biltmore Hotel, New York city, not at all 
upon the business of defendant, and was there served with 
the summons and complaint. Defendant had then in New 
York no agent to accept service of process, no bank account 
therein, held no directors' or other meetings therein, and had 
no property therein. The ground of the motion was that the 
defendant was not doing business within this State. The 
learned justice, in making his decision, filed no opinion. 

By a literal reading of subdivision 1 of section 432 of the 
Code of Civil Procedure it would seem that service upon the 
president of a foreign corporation within the State is sufficient; 
but our Court of Appeals, in an effort to uphold that provision 
as constitutional and valid, held that its true meaning is that 
such service may be made only when the foreign corporation 
is properly a defendant; that is, when it is doing business 
within the State. (Dollar Co. v. Canadian C. & F. Co., 220 
N. Y. 270, 277.) It may be remarked that it would not be 
easy to find a decision upon the point better illustrating the 
length to which a court may go to save the constitutionality of 
a statute, which otherwise would be invalid as violating section 
1 of the Fourteenth Amendment to the Federal Constitution. 
This holding constituted a modification of the rule previously 



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172 Sunrise Lumber Co., Inc., v. Biery Lumber Co. 

Second Department, January, 1981. [Vol. 195. 

asserted by that court in Pope v. Terre Haute Car Mfg. Co. 
(87 N. Y. 137) and allied cases. That modification was made 
with due regard to the decision of the United States Supreme 
Court in Riverside Mills v. Menefee (237 U. S. 189). 

The test, therefore, here is: Was the defendant corporation 
doing business within this State? What, for the purpose 
of jurisdiction, constitutes " the doing of business within this 
State," was discussed and determined by the Court of Appeals 
in Tauza v. Susquehanna Coal Co. (220 N. Y. 259). In that 
case the defendant, a Pennsylvania corporation, maintained 
a branch office in New York city in charge of an agent having 
eight salesmen under him, where they solicited and received 
orders for the purchase of defendant's product, but transmitted 
such orders to the main office at Philadelphia, where such orders 
were confirmed and finally accepted. The court held that 
that was a sufficient doing of business within this State, citing 
as # authority the case of International Harvester Co. v. Kentucky 
(234 U. S. 579), wherein it was held that a like course by the 
defendant, a foreign corporation within that State, constituted 
a doing of business therein, although the defendant maintained 
no office within that State, but simply regularly maintained 
therein a corps of selling agents, who reported their sales to 
defendant's general agent at its home office, who there approved 
them. 

The intimation of that decision is that, if the soliciting 
and taking of orders within the State had been casual and 
occasional, it would not have constituted a doing of business 
within the State in the jurisdictional sense. That distinction 
seems reasonable; otherwise, nearly every business house in 
New York city would have to be held to be doing business 
within every State in the Union, because its traveling salesmen 
occasionally visit such State and there solicit orders. Applying 
this test to the facts in this record, and construing the affidavits 
most favorably to plaintiff, respondent, as we should do, we 
find simply the following, viz. : 

(a) Defendant's sales manager, upon one occasion, March 5, 
1920, visited plaintiff's office in New York city and there 
solicited a purchase of lumber from the plaintiff, which 
purchase, however, was confirmed by a letter of the defendant 
written from defendant's home office at Franklin, Penn. 



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Sunrise Lumber Co., lsc., v. Bieky Lumber Co. 173 

App. Div.] Second Department, January, 1821. 

(b) Defendant maintained a fiscal agent at No. 280 
Broadway, New York city, for the sale of its corporate stock. 

The above are the only specific facts appearing which 
indicate any doing of business by the defendant within this 
State. The affidavits submitted in behalf of the defendant 
attempted to explain those facts by showing that it has an 
arrangement with a certain New York brokerage concern for 
the sale, upon commission, of a certain quantity of its corporate 
stock, and that that concern published in New York various 
advertisements for the sale of the stock, stating certain material 
facts in reference to defendant's business and financial' status, 
but that they were merely agents to sell the stock, and further, 
that the said purchase from plaintiff was consummated by 
a letter written from the home office in Pennsylvania. It 
further appeared in plaintiff's affidavits that defendant, last 
September, published in the New York Times a notice of its 
declaration of dividend, such notice, however, being dated 
at Franklin, Penn. It seems to me that within the above- 
stated rule the defendant was not doing business within this 
State. The soliciting in New York city by its manager of a 
purchase from plaintiff did not constitute that. A selling by 
its fiscal agent of its stock in New York city was of no greater 
effect in that direction. There is scarcely a considerable 
corporation anywhere in the United States which does not 
attempt to sell its stock and bonds through Wall street houses. 
Such selling is not a doing of business by the corporation. 
The business of this defendant is manufacturing and marketing 
lumber; not at all the sale of stock. 

I advise, therefore, that the order appealed from be reversed, 
with ten dollars costs and disbursements, and the motion 
granted, with ten dollars costs. 

Jekks, P. J., Rich, Blackmar and Jaycox, JJ., concur. 

Order reversed, with ten dollars costs and disbursements, 
and motion granted, with ten dollars costs. 



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174 Aldrich v. Great American Insurance Co. 

First Department, January, 1921. [Vol. 105. 



Spencer Aldrich, Plaintiff, v. Great American Insurance 
Company, New York, Defendant. 

First Department, January 14, 1921. 

Insurance — validity of coinsurance clause in fire insurance policy — 
Insurance Law, section 121, as added by chapter 440 of the Laws 
of 1917, construed. 

< 
The parties to a fire insurance contract are not prohibited by chapter 440 
of the Laws of 1917, adding section 121 to the Insurance Law, and the 
standard fire insurance policy thereby adopted, from agreeing, in con- 
sideration of a reduced rate of insurance to the assured, that an eighty 
per cent average or coinsurance clause shall be attached to the standard 
form of policy. 
Page, J., dissents. 

Submission of a controversy upon an agreed statement of 
facts pursuant to section 1279 of the Code of Civil Procedure. 

Sidney H. Stuart, for the plaintiff. 

George Richards of counsel [Richards &Affe1d, attorneys], for 
the defendant. 

Laughlin, J.: 

The point presented for decision by this submission is, 
whether the parties to a fire insurance contract are prohibited 
by chapter 440 of the Laws of 1917, adding section 121 to 
the Insurance Law, and the standard fire insurance policy 
thereby adopted, from agreeing, in consideration of a reduced 
rate of insurance to the assured, that an eighty per cent 
average or coinsurance clause shall be attached to the standard 
form of policy, by which, in the event that the assured does 
not carry insurance to the extent of eighty per cent or more 
of the value of the property insured, the insurer shall not 
be liable for a greater proportion of any loss or damage to the 
property than the sum insured bears to eighty per cent of 
the actual cash value of the property at the time of the loss. 
The standard form of policy in, use when the insurance policy 
to which this insurance relates was issued contains in lines 101 



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Aldbigh v. Great American Insurance Co. 175 

▲pp. Dhr.] First Department, January, 1881. 

to 105, inclusive, a clause with respect to " pro rata liability " 
in cases of other insurance, by which it is provided that the 
insurer " shall not be liable for a greater proportion of any 
loss or damage than the amount hereby insured shall bear 
to the whole insurance covering the property, whether valid 
or not and whether collectible or not." Like provisions with 
others were contained in lines 96 to 98, inclusive, of the standard 
form of policy in use at the time of the enactment of the 
last-mentioned statute. (Richards Ins. Law [3d ed.], 722; 
1 Clement Fire Ins. 479.) At the time of the enactment of 
said statute a form for an average clause in blank with respect 
to the percentage, and providing also that no special inventory 
or appraisement of the undamaged property shall be required 
where the loss claimed does not exceed five per cent of the 
maximum amount named in the policies written thereon and 
in force at the time of the loss, and that if the insurance be 
divided into two or more items these clauses shall apply to 
each clause separately, had been filed with and approved by 
the Superintendent of Insurance but was not included in 
the standard' form, and it was lawful for the insurer and the 
assured. to contract with respect thereto and to attach the 
average or coinsurance clause to the policy as a rider. 
(Richards Ins. Law, 733; Laws of 1913, chap. 181, amdg. Ins. 
Law, § 121.) The stipulated facts show that a standard form 
of fire insurance policy was issued to the plaintiff by the defend- 
ant after the enactment of said amendment in 1917 and that 
the parties agreed in writing to an average clause with exemp- 
tion of special inventory or appraisement in certain cases, there 
designated as an " Eighty Per Cent Average Clause/' in the 
identical form of the clause theretofore authorized and in 
use, and attached the same to the policy as a rider. The 
defendant has paid the amount due to the plaintiff on account 
of the loss if this clause is Valid. If it be invalid, there is a 
balance still due and owing, for which the stipulation authorizes 
a judgment in favor of the plaintiff, but if the clause be valid 
the defendant is to have judgment, and in either event the 
judgment is to be without costs. In the absence of such an 
average or coinsurance clause, the assured is entitled to 
collect his entire loss not exceeding the amount of the insurance; 
but under this average clause, if both the amount of the 



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176 Aldeich v. Great American Insurance Oo. 

First Department, January, 1921. [Vol. 186. 

loss and the amount of the insurance are less than the percent- 
age of the value of all the property insured, there cannot be 
a full recovery for the loss. (Fanners' Feed Co. v. Scottish 

Union Ins. Co., 173 N. Y. 241.) In other words, if the 
insurance represents eighty per cent or more of the value 
at the time of the loss of all the property insured, full' recovery 
of the loss may be had; but if the insurance is for less than 
eighty per cent of such value, then the recovery is limited to 
the proportion of the loss which the amount of the insurance 
bears to eighty per cent of the value at the time of the loss 
of all the property insured. (Farmers 9 Feed Co. v. Scottish 

Union Ins. Co., supra.) As, for example, if the value of the 
property insured be $10,000 and the insurance be $8,000 or 
more, the entire loss, whether of all or part of the property 
insured to the extent of the amount of the insurance is recover- 
able; but if the amount of the insurance in such case was 
only $5,000, the assured could recover only five-eighths of 
the loss, whether of all or of part, not exceeding the amount 
of the insurance. 

Chapter 488 of the Laws of 1886 provided, among other 
things, for the preparation and filing in the office of the Secre- 
tary of State by the New York board of fire underwriters 
on or before October fifteenth, or in default thereof, by the 
Superintendent of Insurance on or before November fifteenth 
of that year, a form of fire insurance policy " together with 
such provisions, agreements or conditions as may be indorsed 
thereon or added thereto and form a part of such contract 
or policy/ ' and that such form of policy should become the 
" Standard Fire Insurance Policy of the State of New York." 
Counsel for the defendant states in the points that coinsurance 
clauses, in effect the same as the one presented by the submis- 
sion, were so filed pursuant to that statute. That fact is not 
stipulated, but counsel quotes the clauses and they sustain 
his claim and if necessary, doubtless, we could take judicial 
notice of the fact since they become part of the standard 
policy. 

By section 121 of the Insurance Law of 1892 (Gen. Laws, 
chap. 38; Laws of 1892, chap. 690) it was provided that the 
printed blank form of a contract or policy of fire insurance 
" with such provisions, agreements or conditions as may be 



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Aldrich v. Great Amkbioan Insurance Co. 177 

App. Div.] First Department, January, 1921. 

indorsed thereon or added thereto and form a part of such con- 
tract or policy " theretofore filed in the office of the Secretary 
of State pursuant to the provisions of chapter 488 of the Laws 
of 1886 should be known and designated as the " standard fire 
insurance policy of the State of New York." The Legislature 
by chapter 429 of the Laws of 1887 ratified and confirmed the 
standard policy and special clauses filed pursuant to the act 
of 1886. 

Section 121 of the Insurance Law, as amended by chapter 
513 of the Laws of 1901, provided in part as follows: 

" Standard fire insurance policy to be prescribed and used. — 
The printed blank form of a contract or policy of fire insurance, 
with such provisions, agreements or conditions as may be 
indorsed thereon or added thereto and form a part of such 
contract or policy, heretofore filed in the office of the Secretary 
of State by the Superintendent of Insurance or by the New Y<4k 
board of fire underwriters, pursuant to the provisions of 
chapter four hundred and eighty-eight of the laws of eighteen 
hundred and eighty-six shall be transferred by the Secretary 
of State to the office of the Superintendent of Insurance and, 
together with such provisions, agreements or conditions as 
may previous to the thirty-first day of December, ifineteen 
hundred and one, be filed by the New York board of fire 
underwriters in the office of the Superintendent -of Insurance 
and approved by him, which provisions, agreements or con- 
ditions shall be void if they are inconsistent with the standard 
fire insurance policy heretofore filed in the office of the Secretary 
of State, shall be known and designated as the ' standard fire 
insurance policy of the State of New York.' No fire insurance 
corporation, its officers or agents, shall make, issue or deliver 
for use, any fire insurance policy or the renewal of any such 
policy on property in this State, other than such as shall 
conform in all particulars as to blanks, size of type, context, 
provisions, agreements and conditions with such printed 
blank form of contract or policy; and no other or different 
provision, agreement, condition or clause shall be in any manner 
made a part of such contract or policy or indorsed thereon or 
delivered therewith, except as follows, to wit: * * * 
Second. Printed or written forms of description and specifica- 
App. Div.— Vol. CXCV. 12 



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178 Aldrioh t/« Great American Insurance Co. 



First Department, January, 1921. [Vol. 105. 

tion, or schedules of the property covered by any particular 
policy, and any other matter necessary to clearly express all 
the facts and conditions of insurance on any particular risk 
not inconsistent with or a waiver of any of the conditions 'or 
provisions of the standard policy herein provided for." 

These provisions were re-enacted without change, with the 
exception of slight changes in punctuation not materially 
affecting the construction, by the amendment made to section 
121 by chapter 106 of the Laws of 1903, and by section 121 of 
the present Insurance Law (Consol. Laws, chap. 28; Laws of 
1909, chap; 33), as amended by chapter 240 of the Laws of 
1*909, and by chapters 168, 638 and 668 of the Laws of 1910; 
and they were also re-enacted in the amendment made by 
chapter 181 of the Laws of 1913, but the words "previous to 
•the thirty-first day of December, nineteen hundred and one," 
-were omitted. That omission, however, has no material bear- 
ing on the point presented for decision by this submission. 

Acting on the provisions of the section, as amended by said 
chapter 513 of the Laws of 1901, the blank form average clause, 
to which reference has been made, was filed in the office of the 
Superintendent of Insurance, and from the time it was so 
filed down to the present time it has been in use in the precise 
form in which it is found on the policy in question, as a rider 
in connection with the standard policy. After the amendment 
made by chapter 440 of the Laws of 1917; this blank form was 
refiled under the provisions of said amendment in precisely 
the same form, and approved by the Superintendent of Insur- 
•ance on December 31, 1917. 

The standard form in use prior to the amendment of 1917, 
exclusive of any authorized rider that might be agreed upon, 
contained in the body of the policy 112 numbered lines; and it 
was provided in lines 96 to 100, inclusive, as follows: " This 
company shall not be liable under this policy for a greater 
proportion of any loss on the described property, or for loss 
by and expense of removal from premises endangered by fire, 
than the amount hereby insured shall bear to the whole 
insurance, whether valid or not, or by solvent or insolvent 
insurers, covering such property, and the extent of the applica- 
tion of the insurance under this policy or of the contribution 
to be made by this company in case of loss, may be provided 



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Aidmch v. Great American Insurance Co. 179 



App. Biv.] First Department, January, 1921. 

for by agreement or condition written hereon or attached or 
appended hereto." 

And it was further provided in line 113, as follows: " This 
policy is made and accepted subject to the foregoing stipula- 
tions and conditions, together with such other provisions, 
agreements, or conditions as may be endorsed hereon or added 
hereto." 

It is to be borne in mind that during all the period from 
1886 down to the time the form of the policy was changed by 
the amendment of 1917, the statute prohibited the indorsing 
on or adding to the standard form of policy of any provision, 
agreement or condition inconsistent with the provisions of the 
standard form of policy; and yet throughout that period said 
blank form of rider, specified thereon as such average clause 
but better known and generally referred to as a coinsurance 
clause, was in use. 

By section 2 of chapter 440 of the Laws of 1917 section 121 
of the Insurance Law, as theretofore amended, was repealed, 
and by section 3 thereof a new section 121 was added to take 
effect January 1, 1918, so as to provide with respect to the 
standard policy and clauses that may be added thereto as 
follows : 

" The printed blank form of a contract or policy of fire 
insurance adopted by the National Convention of Insurance 
Commissioners at its meeting held in the city of New York on 
the twelfth day of December, nineteen hundred and sixteen, 
shall be filed by the Superintendent of Insurance in his office 
on the first day of January, nineteen hundred and eighteen, 
with the date of such filing indorsed thereon by him and shall 
be known and designated as the l Standard fire insurance 
policy of the State of New York/ * * * and no other* or 
different provision, agreement, condition or clause shall be in 
any manner made a part of such contract or policy or indorsed 
thereon or added thereto or delivered therewith, except as 
follows, to wit: * * * 

" Third. There may be printed in the space indicated by 
the words ' space for description of property/ or added to 
the policy at such space by agreement in writing thereon or 
by rider attached thereto the following \ * * * 2. The 
extent of the application of insurance under the policy; 3. 



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180 Aldrich v. Great American Insurance Co. 

First Department, January, 1921. [VoL 195. 

The extent of the contribution to be made under the policy in 
case of loss or damage; 4. Any other matter necessary clearly 
to express all the facts and conditions of insurance on any 
particular risk. Provided, however, that no such agreement 
or rider shall be inconsistent with or a waiver of any of the 
conditions or provisions of the standard fire insurance policy 
hereby established, * * *. Forms of riders, indorsements, 
clauses, permits, forms or other memoranda to be attached to 
and made a part of fire insurance contracts relating to property 
located in this State may be presented for filing in the office of 
the Superintendent of Insurance by any corporation, associa- 
tion or bureau maintained for the purpose of suggesting, 
approving or making rates to be used by more than one under- 
writer for insurances on property located in this State, and, when 
approved and filed by such Superintendent of Insurance, shall 
thereupon become standard forms of riders, indorsements, 
clauses, permits, forms or other memoranda and their use 
shall be required, as hereinbefore provided." 

The policy described in the submission was the standard 
form referred to in the last amendment to the statute, and by 
it the numbered lines are transferred from the body to the 
back of the policy with some changes and are renumbered. By 
the policy, in so far as here material, the defendant insured 
the plaintiff to the extent of the actual cash value of the 
property therein described to an amount not exceeding 
$100,000 from all direct loss or damage by fire. In the para- 
graph next to the last in the body of the policy it was provided 
that it was made and accepted subject to the preceding stipu- 
lations and conditions, " and to the stipulations and conditions 
printed on the back hereof, which are hereby made a part of 
thisr policy, together with such other provisions, stipulations 
and conditions as may be endorsed hereon or added hereto as 
herein provided." The conditions printed on the back of the 
policy are printed in fine print and the lines thereof are num- 
bered consecutively from 1 to 200. Lines 72 to 77, inclusive, 
are as follows: 

"Added Clauses. The extent of the application of insurance 
under this policy and of the contribution to be made by this 
Company in case of loss or damage, and any other agreement 
not inconsistent with or a waiver of any of the conditions or 



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Aldrich v. Great American Insurance Co. 181 



App. Div.] . First Department, January, 1921. 

provisions of this policy, may be provided for by agreement in 
writing added hereto." 

Lines 101 to 105, inclusive, are as follows: 

" Pro Rata Liability. This Company shall not be liable for 
a greater proportion of any loss or damage than the amount 
hereby insured shall bear to the whole insurance covering 
the property, whether valid or not and whether collectible or 
not." 

It will be observed that the provisions contained in lines 101 
to 105, inclusive, and the first three lines of the paragraph 
relating to " added clauses " of the new standard policy, are 
substantially the same as those theretofore contained in a 
single sentence in the former policy in lines 96 to 100, inclusive. 
The remaining provisions of the " added clauses " contained 
in lines 74 to 77, inclusive, to wit, " and any other agreement 
not inconsistent with or a waiver of any of the conditions or 
provisions of this policy, may be provided for by agreement 
in writing added hereto," are the same, in substance, as the 
provisions of the former standard policy in line 113 herein 
quoted, with the additional provisions that any such further 
agreement to be added to the policy shall not be inconsistent 
with or a waiver of any of the conditions or provisions of the 
policy. Although the former standard policy contained no 
such provision on the subject of inconsistent agreements, it 
will be observed that at all times from the enactment of chapter 
488 of the Laws of 1886 to the amendment of section 121 in 
1917, the statute itself forbade the making of any special 
agreement inconsistent with the provisions of the standard 
policy. It is also to be noted that by the changes made in the 
standard policy in 1917, the provisions with respect to the 
pro rata liability of the insurer where there is more than one 
policy on the property, and the provisions relating to the 
extent of the application of insurance under the policy and the 
contribution to be made by the insurance company in case of 
loss or damage, which were embodied in the same sentence in 
the former standard policy, have been separated and the 
pro rata provisions are now preceded by the heading " Pro Rata 
Liability," and the others are preceded by the heading "Added 
Clauses," and they precede the provisions relating to pro rata 
liability. This change has a significant bearing on the point 



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182 Aldbich v. Great American Insurance Oo. 

First Department, January, 1921. m [Vol. 195. 

as to whether, as contended by the plaintiff, the provisions 
with respect to the extent of the application of the insurance 
and with respect to the contribution to be made by the insurer 
relate only to the application of the insurance and to contribu- 
tion as between insurance companies and concerning their pro 
rata liability. If that were their only purpose, it would seem 
that they would have been left, as before, together. On this 
point, we are informed by counsel for the defendant that no 
form of clause or rider for a special agreement with respect 
to the pro rata liability, apportionment or contribution as 
between insurance companies has ever been filed; and it is, 
therefore, contended, with much force, I think, that the pro- 
visions with respect to the extent of the apportionment of the 
insurance and of the contribution to be made by the insurer 
were intended and understood to apply, if not exclusively at 
least also, to other agreements than those relating to pro rata 
liability as between insurance companies. That this is so is, 
I think, demonstrated by the history of so-called coinsurance 
and by the opinions of the courts with respect thereto prior 
to the enactment of any of the statutes to which reference has 
been made and during the time that the statutes prior to the 
amendment of section 121 in 1917 were in force. Coinsurance 
in ordinary fire insurance policies is an application, in part, 
of the general rule in use for centuries with respect to marine 
insurance, under which the insured was deemed a coinsurer with 
respect to the excess in value of the property insured over and 
above the amount of insurance thereon, or in other words, that 
part of the risk not covered by the insurance policies and he 
was entitled to share to that extent in any salvage. (Winter 
Marine Ins. 164, 165; 2 Arnould Marine Ins. § 1215; 2 Parsons 
Marine Ins. 405 ; 2 Philips Ins. § 1435.) Webster's International 
Dictionary defines " co-insurance " as follows: " Co-insurance 
* * *, that system of fire insurance in which the insurer is 
treated as insuring himself to the extent of that part of the 
risk not covered .by his policy, so that any loss is apportioned 
between him and the insurance company on the principle of 
average, as in marine insurance or between other insurers," 
and " co-insurance clause. Fire insurance " as " the clause in 
a policy of insurance which provides for the application of the 
coinsurance system in case of loss." We find that the courts in 



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Aldrich v. Great American Insurance Co. 183 

App. Div.] First Department, January, 1921. 

deciding cases involving coinsurance use the words " apportion- 
ment," " proportion " and " contribution, ,, which are the words 
embodied in our statute and in the former and present standard 
form of policy, as applicable to that part of the insurance 
which, in such cases, the insurer himself is deemed to carry. 
(Buse v. National Ben Franklin Insurance Co., 96 Misc. Rep. 
229; affd., without opinion, 177 App. Div. 948; 226 N. Y. 589; 
Farmers' Feed Co. v. Scottish Union Insurance Co., 173 id. 241; 
Chesbrough v. Home Ins. Co., 61 Mich. 333; 2 Arnould Marine 
Ins. § 1215.) It is manifest that the rates of insurance which 
it becomes necessary for insurance companies to charge depend 
upon the premiums received and losses sustained by them. To 
the end that insurance rates shall operate equitably, the Legis- 
lature has by section 65 of the Insurance Law (added by Laws 
of 1911, chap. 416, as amd. by Laws of 1918, chap. 141) pro- 
vided against discrimination. It is important both to preserve 
the solvency of insurance companies and for the equitable 
application of the rates charged for insurance, that such rates 
shall be determined upon scientifically. Coinsurance clauses 
have frequently been declared to be just and reasonable and 
entirely consistent with the rule of indemnity, for they merely 
require the assured, as a condition of receiving a lower premium 
rate, to stand part of the loss himself, where he does not take 
out full insurance or insurance to the percentage of the value 
specified. {Belt v. American Central Ins. Co., 29 App. Div. 546; 
affd., 163 N. Y. 555; Buse v. National Ben Franklin Insurance 
Co., supra; Hartwig v. American Insurance Co., 169 App. Div. 
60; Christian & Daniel v. Niagara Fire Ins. Co., 101 Ala. 634; 
Stephenson v. Agricultural Ins. Co., 116 Wis. 277; Penn. Fire 
Insurance Co. v. Moore, 51 S. W. Rep. 878; Quinnv.Fire Assn., 
180 Mass. 560; Firemen's Fund Ins. Co. v. Pekor, 106 Ga. 1; 
Attorney-General v. Commissioner of Insurance, 148 Mich. 566; 
Ostrander Ins. [2d ed.] § 208.) It might, I think, fairly be 
assumed from the extent to which coinsurance clauses were in 
use in this State that the Legislature was aware of their use 
prior to the amendment of section 121 in 1917, but it clearly 
appears that it was, for in 1911 the Merritt commitee, so called, 
which was a joint legislative committee appointed in 1910, had 
those clauses under consideration and with respect thereto 
reported as follows: 



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184 Aldrich v. Great American Insurance Co. 

First Department, January, 1921. [Vol. 195. 

' " The general conclusions we reach With regard to the 
coinsurance clause are these : that the principle upon which it is 
founded, namely, that rates should be based upon the percent- 
age of insurance carried, is not only sound but is absolutely 
requisite if the equities of the insured are to be preserved; 
second, that the coinsurance clause rightly recognizes that as 
a practical matter the responsibility for maintaining a given 
percentage of insurance must rest with the insured; third, that 
the operation of the agreement is automatic and fair. 

" The objections that can be urged to the coinsurance 
clause are not on theoretical . but on practical grounds and 
are entirely due to the fact that it is in use where it is 
not understood. It is perfectly true that the coinsurance 
clause is a dangerous thing for a person who does not under- 
stand it and for a person who does not keep close watch of his 
values, — not dangerous in the sense that the insured will not 
get what he ought to get, but in the sense that he will not get 
what he thinks he is going to get. But, should the government 
undertake to shield those who enter into a contract which they 
do not understand if this must be done at the expense of the 
real equities of the mass of the insured? 

" The very purpose of the coinsurance clause is to place 
upon the insured the responsibility for ascertaining the value 
of his property, and for keeping it properly insured; and it goes 
without saying that, having assumed this responsibility, he 
must live up to it or he will be caught at a disadvantage. 

" All that the insured needs to know, as a practical matter, is 
that in signing, say, an 80 per cent, coinsurance clause he 
agrees to keep at least 80 per cent, of the value of his property 
covered by insurance, and that in failing to do so he makes 
himself liable to the loss of part of his indemnity." (N. Y. 
Assembly Documents, 134th Session, 1911, vol. 20, No. 30, 
pt. 1, pp. 89, 90.) 

It thus appears by practical construction that for a period 
of some thirty years prior to 1917, it was deemed by the 
Legislature, by the Superintendent of Insurance, by insurance 
companies, by those desiring the lower rate obtainable by 
coinsurance, and by the courts, that coinsurance clauses 
were authorized; and since they could be valid only on the 
theory that they were not inconsistent with the provisions of the 



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Aldrich v. Great American Insurance Co. 185 

App. Biv.] First Department, January, 1991. 

standard policy, it follows also that they were deemed to be 
consistent therewith. It is stated in the points for the defend- 
ant that in a few of our sister States coinsurance is prohibited 
by statute, and that in others it is expressly regulated by 
statute, and cases are cited which sustain the contention. In 
Nelson v. Traders 9 Insurance Co. (181 N. Y. 472) the court in 
sustaining as valid a clause added to the New York standard 
policy, to the effect that if a building in which the insured 
property was or any part thereof should fall, except as the 
result of a fire, the insurance on the building or its contents 
should immediately cease and in construing it as relieving the 
insurance company from liability for fire following immediately 
after the fall of the building, stated that the contract was one 
of indemnity against loss caused by fire and not against a 
loss " the proximate cause of which was in the working of 
some other agency; " and in holding that it was competent 
for the parties to agree that the company should not be liable 
for a loss from fire after the fall of the building, said: " It is 
quite competent, in so far as the provisions of a policy are 
concerned, to modify, or to restrict them, or to describe more 
particularly the actual risk assumed, by a written indorsement 
upon the instrument. The Legislature left the parties free 
in that respect and it would have been competent for them to 
do so in this case, if the intention had been to insure the 
plaintiffs 7 premises as an independent, or separate, structure. 
As it is, this clause of the contract is plain; it is not unreason- 
able as a limitation of the insurance hazard and, unless the 
court is to make a new agreement between the parties, it 
should be enforced." It would seem, in the circumstances, 
that if the Legislature intended to limit the freedom of con- 
tract which it had theretofore sanctioned and acquiesced in, 
and to prohibit such agreements for average or coinsurance, 
there would have been embodied in the statute or in the 
standard policy some provision clearly expressing or manifest- 
ing such intent (See Firemen's Fund Ins. Co. v. Pekar, supra; 
Woollcott v. Shubert, 217 N. Y. 212), but I find none. Plaintiff 
was at liberty under this clause to take out such insurance 
as would afford him full indemnity in case of a loss, but he 
evidently preferred not to pay the additional premium incident 
thereto and he thereby elected to become a coinsurer, so far 



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186 Steinbeck v. Helena. 

Second Department, January, 1931. [Yol. 195. 

as the defendant is concerned, to the extent of the loss, which 
it refused to pay and which he now seeks to recover. Since 
the amendment of the statute and the changes in the standard 
form of policy in 1917, the Appellate Term in Durham v. 
Stuyvesant Insurance Co. (112 Misc. Rep. 440) decided that an 
agreement for coinsurance is inconsistent with the provisions 
of the standard policy and, therefore, void. I am unable to 
agree with that decision for the reasons herein stated. 

It follows that the defendant is entitled to judgment on the 
submission but, pursuant to the stipulation, without costs. 

Clabke, P. J., Smith and Merrell, JJ., concur; Page, J., 
dissents. 

Judgment ordered for defendant, without costs. Settle order 
on notice. 



Daniel D. Steinbeck, as Executor of John H. Steinbeck, 
Deceased, Respondent, v. Edith Helena, Appellant. 

Second Department, January 14, 1921. 

Kasementa — when right to have and maintain water pipe from 
spring does not pass by deed as appurtenance — when implied 
easement does not survive full covenant warranty deed. 

In an action wherein the question involved was the right of the plaintiff 
to have and maintain a water pipe underground from a spring on the 
defendant's premises to the plaintiff's house it appeared that originally 
the two properties had been one farm and that a pipe had been run under- 
ground from a spring on property now owned by the defendant to the 
barns on that property and thence across the highway to the house; 
that the owner devised the farm to his two sons, one of whom was the 
plaintiff's testator, excepting the house and curtilage, which was devised 
to the- widow for life; that the two sons divided the farm with the excep- 
tion of the house, and the plaintiff's testator took a quitclaim deed for 
that part of the farm on the house side of the road and gave a similar 
deed to his brother of the property on the opposite side of the road; that 
on the death of the widow the plaintiff's testator received a deed of the 
house and curtilage; that in none of the deeds was any mention made 
of the pipe or spring; that the defendant thereafter acquired the property 
on which the spring was located by a warranty deed without any reserva- 
tion as to the pipe or spring, and that although the house had. been sup- 



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Steinbeck v. Helena. 187 

App. Div.] Second Department, January, 1921. 

plied with water from the spring for a great many years the defendant 
had no knowledge that the water eame from her premises. 

Held, that the right to have and maintain the pipe from defendant's spring 
to plaintiff's house did not pass under the deed from the plaintiff's brother 
to the plaintiff as an appurtanance. 

There is no implied easement in favor of the plaintiff to have and maintain 
the pipe which survived the full covenant and warranty deed to the 
defendant, for the reason that when she took that deed the existence 
of the alleged easement was not open and visible upon the premises which 
she purchased and which were conveyed to her and was not known to 
her at the time she took title. , 

Appeal by the defendant, Edith Helena, from a judgment of 
the Supreme Court in favor of the plaintiff, entered in the 
office of the clerk of the county of Putnam on the 10th day of 
January, 1920, upon the decision of the court rendered after 
a trial at the Putnam Special Term. 

Alfred A. Wheat [Clayton Ryder with him on the brief], for 
the appellant. 

Ray F. Barnum [Frederic S. Barnum with him on the brief], 
for the respondent. 

Mills, J. : 

There is no dispute as to the facts, and they are the follow- 
ing, as stated in the decision: 

About December, 1894, Daniel D. Steinbeck, Sr., died at 
said town, being the owner of a farm of land therein containing 
about 270 acres, which was divided into two portions by a 
highway, with a barn upon one side of the road and a house 
upon the other, which used to be a common arrangement in 
farm property. He left him surviving two sons and a widow. 
He left a will by which he gave to the two sons the farm except 
that he gave to the widow the use for her life of the house and 
the lot containing about three-quarters of an acre upon which 
the house stood. At the time of his death and for many years 
before, there was a pipe leading from a spring on the barn 
side of the road to a tub at the barn and thence under the road 
to some receptacle in the house, such pipe being altogether 
under ground; and by it both the barn and the house were 
supplied with water. 

In 1895 the sons divided between them the farm by each 



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188 Steinbeck v. Helena. 

Second Department, January, 1921. [Vol. 195. 

giving to the other a quitclaim deed of his portion except the 
said house and lot. By that division Millard became the 
sole owner of the portion of the farm on the barn side of the 
road and John the sole owner of the other part of the farm 
except the house and lot. The widow continued to reside in 
the house until her death in 1900. Thereafter in that year 
the two sons, who had become by her death the sole owners of 
the house and lot, offered it for sale at public auction and 
John purchased it for the sum of $1, 500. Whereupon Millard 
gave to John a quitclaim deed of his interest in the house and 
lot which was duly recorded on February 27, 1901. In 
July, 1911, Millard sold and conveyed by deed dated July 
11, 1911, his portion of the farm to defendant. Up to and 
after the time of the conveyance to the defendant the pipe 
continued to be located as above stated and both house and 
barn continued to be supplied with water through it as above 
stated. In the year 1914 defendant cut off the part of the 
pipe which went from her premises across the road and thus 
stopped entirely the flow of water from the spring to the 
premises of John, and this action was thereafter commenced. 
John died pending the action and his executor was substituted 
as plaintiff. 

Defendant testified that when she purchased the property 
she had no notice whatever that there was any pipe or any 
connection from her land to the house. I find in the record 
no evidence contradicting her testimony in this respect. It 
is plain that the pipe to plaintiff's house from the locality of 
the tub at the barn on defendant's land was entirely under- 
ground without any evidence of its existence visible upon 
defendant's premises; and that much the plaintiff at the trial 
admitted. The learned trial justice found that such use of 
the water at the house was " open, visible and notorious " 
for sixty years prior to defendant's cutting off the pipe as 
aforesaid, and he refused defendant's contrary request. Upon 
the evidence it is plain that such user had been open and 
visible only upon the plaintiff's premises, that is, at the house. 

The contention of the appellant here is that the right to 
have and maintain the pipe from defendant's spring to plain- 
tiff's house did not pass under the deed of Millard to John as 
an appurtenance. It should have been stated before that 



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Steinbeck v. Helena. 189 



App. Div.] Second Department, January, 1991. 

not one of the deeds contains any reference to the spring or 
pipe or use of the water. This claim of the appellant appears 
to be sustained by the case of Root v. Wadhams (107 N. Y. 
384, 394). Appellant further contends that there is no 
implied easement in favor of the plaintiff to have and maintain 
that pipe which survived the full covenant warranty deed to 
the defendant, for the reason that when she took that deed 
the existence of the alleged easement was not open and visible 
upon the premises which she purchased and which were con- 
veyed to her. 

This claim also seems to me to be sustained by the author- 
ities cited in his brief by the learned counsel for the appellant. 
(Butterwarth v. Crawford, 46 N. Y. 349, and Treadwell v. Inslee, 
120 id. 458.) He contends that the vital point in those deci- 
sions was that the alleged easement was not visible and 
notorious. The learned counsel for the respondent attempts 
to discriminate the instant case from those, because in them the 
first conveyance by the common owner was of the servient 
tenement. That, however, is practically the situation here, 
because under the will of the father the sons John and Millard 
were the owners of the entire farm and upon his death entitled 
to immediate possession of all of it except that the widow had 
a life estate in the house. They owned that subject to that 
life estate, and in that situation they in 1895 conveyed the 
alleged servient tenement to Millard without any reservation 
of the alleged easement. After the mother's death in 1900 
Millard quitclaimed to John his interest in the house and 
lot. The servient tenement thus was first severed and 
conveyed. 

I agree with the counsel for the appellant, however, that the 
controlling point in the authorities is the fact that the alleged 
easement was not open and visible and was not known to the 
defendant when she took her title to the alleged servient 
tenement. 

Hence, I conclude that the decision in the instant case is 
mistaken and that the judgment should be reversed. As it 
does not seem possible that upon a new trial evidence may be 
adduced to show actual notice to the defendant when she 
purchased, I conclude that a new trial should not be granted. 

Therefore, I advise that the judgment appealed from be 



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190 People ex rei* Morewood Realty H. Oo. v. Cantor. 

First Department, February, 1921. [Vol. 195. 

reversed, with costs, upon the ground that we consider that 
the findings Nos. 8 and 10, that the alleged easement was 
open, visible and notorious when defendant purchased and 
took her title, were against the weight of the evidence and that 
defendant's proposed findings Nos. 9, 10, 11, 12, 13 and 14 
should have been allowed and found as being required by the 
weight of the evidence. Therefore, we should reverse said 
findings Nos. 8 and 10 and make defendant's said proposed 
findings Nos. 9, 10, 11, 12, 13 and 14, and award judgment to 
defendant dismissing the complaint upon the merits, with 
costs. 

Jenks, P. J., Rich, Blackmar and Jaycox, JJ., concur. 

Judgment reversed, with costs. Findings Nos. 8 and 10 in 
the decision reversed, and defendant's proposed findings 
Nos. 9, 10, 11, 12, 13 and 14 are found, and judgment is granted 
to the defendant dismissing the complaint on the merits, 
with costs. 



The People of the State of New York ex reL Mobe- 
wood Realty Holding Company, Respondent, v. Jacob A. 
Cantor and Others, as Commissioners of Taxes and Assess- 
ments of the City of New York, Constituting the Board 
of Taxes and Assessments of the City of New York, 
Appellants. 

First Department, February 4, 1921. 

Taxation — assessment — resolution of board of assessors of city 
of New York reducing assessment may not be disregarded by 
new board although assessment roll not changed — Greater New 
York charter, section 898, construed. 

The board of assessors of the city of New York, although clothed with power 
to continue any proceedings instituted by a prior board, has no authority 
to disregard a resolution of such prior board entered in its minutes reducing 
an assessment and to confirm said assessment as originally made, although 
the figures on the assessment roll were not in fact changed. 

Section 898 of the Greater New York charter, requiring the decision of the 
tax board in an application for revision to be filed within thirty days 
after the close of the hearing, is doubtless directory merely, and the 



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People ex rel. Morewood Realty H. Co. v. Cantor. 191 

App. Div.] First Department, February, 1921. 

failure to determine an application within thirty days does not leave the 
board without power to act, and determinations thereafter made are of 
like force and effect as if made within the thirty days specified in the 
statute. 

Appeal by the defendants, Jacob A. Cantor and others, as 
commissioners, from an order of the Supreme Court, made at 
the New York Special Term and entered in the office of the 
clerk of the county of New York on the 28th day of April, 1920, 
directing that the assessment on 261-267 Amsterdam avenue, 
block No. 1144, lot No. 1, for the year 1918, of $1,000,000, 
be reduced to and confirmed at the sum of $975,000. 

William H. King of counsel [R. M. de Acosta and Charles E. 
Lalanne with him on the brief; John P. O'Brien, Corporation 
Counsel], for the appellants. 

Alexander L. Strouse of counsel [Clarence M. Lewis with him 
on the brief; Seligsberg, Lewis & Strouse, attorneys], for the 
respondent. 

Smith, J. : 

The relator duly filed its objections to the assessment for 
overvaluation. A hearing was had before the assessors and 
upon December 14, 1917, a resolution was passed and entered 
in their minutes reducing the assessment. The figures upon 
the assessment roll itself were not in fact changed. Upon 
January first a new tax board came into office and upon Jan- 
uary thirty-first they assumed to confirm the assessment a& 
originally made disregarding the action of the prior tax board 
upon December fourteenth. The relator thereupon brought 
this proceeding to have the valuation of its property reduced 
as provided in the resolution of the first tax board upon 
December fourteenth. By the determination from which this 
appeal is taken the assessment of the relator's property was 
thus corrected. ' 

The determination must be confirmed. When the first 
board of assessors acted upon the relator's application and 
passed the resolution reducing the assessment they acted 
judicially. The entry of the passage of the resolution, in 
their minutes, was the record of their judicial determination. 
They had no power thereafter, even if they had continued in 



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192 People ex rel. Morewood Realty H. Co. v. Cantor. 

First Department, February, 1921. [Vol. 185. 

office, to reconsider or make any other determination. Their 
power is limited by the statute and when once exercised in the 
form of a judicial determination it ends. It would follow 
that the old board would not have the right to reconsider any 
determination made by it upon December fourteenth. We will 
assume that the new board is a continuing board with power to 
continue any proceedings instituted before the. first board. 
Nevertheless, it was without power to change the determina- 
tion which had been so recorded. 

In the brief of the corporation counsel reference is made to 
an extract from the opinion in the case of People ex rel. Cham- 
berlain v. Forrest (96 N. Y. 544) in which it is said: " The 
assessors speak to the taxpayers through their completed rolls. 
Those, and those only, register their judgments." In that 
case, however, the court was considering the then existing State 
Tax Law and the completed roll there referred to was a roll 
completed before opportunity was given to the taxpayer to 
present grievances. It cannot be interpreted as holding that 
an actual change of the figures upon the assessment roll is 
necessary to effectuate the judicial determination made by 
the passage and recording of the resolution reducing the 
relator's assessment. 

In support of the determination appealed from attention is 
called to section 898 of the Greater New York charter (Laws 
of 1901, chap. 466, as amd. by Laws of 1911, chap. 455) which 
requires the decision of the tax board in an application for 
revision to be filed within thirty days after the close of the 
hearing. That requirement is without doubt directory merely, 
and a failure to determine an application within the thirty 
days does not leave the board without power to act and 
determinations thereafter made are made with like force and 
effect as if made within the thirty days specified in the 
statute. 

The order should, therefore, be affirmed, with ten dollars 
costs and disbursements. 

Clarke, P. J., Dowmng, Page and Greenbaum, JJ., 
concur. 

Order affirmed, with ten dollars costs and disbursements. 

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People ex rel. Marloew Amusement Co. t/. Cantor, 193 

App. Div.] First Department, February, 1921. 



The People of the State of New York ex rel. Marloew 
Amusement Company, Respondent, v. Jacob A. Cantor 
and Others, as Commissioners of Taxes and Assessments 
of the City of New York, Appellants. (Taxes of 1918.) 

First Department, February 4, 1921. 

See head note in People ex rel. Morewood Realty Holding Co. v. Cantor 
(ante, p. 190). 

Appeal by the defendants, Jacob A. Cantor and others, from 
an order of the Supreme Court, made at the New York Special 
Term and entered in the office of the clerk of the county of 
New York on the 1st day of May, 1920, reducing the assess- 
ment on lot No. 17, block 1931, section 7, on the assessment 
roll of the borough of Manhattan for the year 1918 from the 
sum of $435,000 to the sum of $233,000. 

William H. King of counsel [R. M. de Acoeta with him on the 
brief; John P. O'Brien, Corporation Counsel], for the appellants. 

James Af . Vincent of counsel [Curtis A. Peters with hiiy) on 
the brief], for the respondent. 

Smith, J.: 

For the reasons stated in the opinion in People ex rel. More-* 
wood Realty Holding Co. v. Cantor (195 App. Div. 190), handed 
down herewith, the order should be affirmed, with ten dollars 
costs and disbursements. 

Clarke, P. J., Dowling, Page and Greenbaum, JJ., 
concur. 

Order affirmed, with ten dollars costs and disbursements. 
App. Div.— Vol. CXCV. 13 



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1 94 Matter of Sch warz. 



First Department, February, 1921. [Vol. 195. 



In the Matter of Adolph M. Schwarz, an Attorney, 
Respondent. 

First Department, February 11, 1921. 

Attorney »t law disbarred — professional misconduct — soliciting 
business by circular letters containing false statements — disregard 
of censure and warning by court. 

Attorney at law disbarred for violation of professional ethics, in that he 
continued falsely to advertise himself as an attorney admitted to practice 
law in other States, and to solicit business by sending broadcast circular 
letters, after being censured and warned by the court on a former com- 
plaint and permitted to continue the practice of law on promise to refrain 
from using unprofessional methods. 

Disciplinary proceedings instituted by the Association of 
the Bar of the City of New York. 

Einar Chrystie, for the petitioner. 

Francis L. Wellman of counsel [Herbert C. Smyth with him on 
the brief; Wellman, Smyth & Scofield, attorneys], for the 
respondent. 

Clarke, P. J. : 

The respondent was admitted to the bar in October, 1905, at 
a term of the Appellate Division, Second Department, and was 
practicing in the First Judicial District at the time he com- 
mitted the acts complained of. 

The petition alleges that the respondent heretofore in 1916 
was proceeded against in a proceeding in the Appellate Division 
in the First Department in which he was charged with mis- 
conduct by reason of the methods employed by him in soliciting 
business and sending out letters, circulars and advertisements 
claimed to be improper; that the court in its decision expressed 
its emphatic disapproval of the respondent's methods and 
censured him severely therefor. The court also stated that 
upon respondent's refraining from further use of such methods 
no further action would be taken against him and warned 
the bar that such conduct would not be tolerated and a repeti- 
tion thereof would lead to disbarment; that the respondent 
has failed to obey the directions of the court and has continued 



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It ■ 



Matter op Schwarz. 195 

App. Div.] First Department, February, 1921. 

to solicit business by means of circular letters sent out in 
large quantities. The following is a copy of one of these 
circular letters: 

"Adolph M. Schwarz, 
"Attorney and Counselor at Law. 
"299 Broadway, New York. 
Boston Chicago 

" Kimball Building First Nat'l Bank Bldg. 

" Philadelphia Cleveland 

" Land Title Building Leader Building 

"Pittsburg Detroit 

" Frick Building Dime Bank Building 

" Private Office December Twenty-Second 

" New York City. Nineteen Nineteen 

" Gentlemen. — My records disclose that I have not 
received any items of business from you for some time. I 
want to ask you — why? Is there a reason? Please be frank 
with me and tell me. I want to correct any misunderstanding 
that may have arisen between your good office and mine. 

" The Collection Department, City and Out-of-town, is 
now in charge of one of the best collection men in the country, 
an attorney and former credit-man, thorough and painstaking 
in the minutest detail, with ability to get results, no matter 
how small or large the account or where the debtor may be 
located. 

" In all offices I maintain a staff of experienced and able 
attorneys. In my New York office alone I have my own 
permanent corps of lawyers, able practitioners, members of 
the New York, New Jersey, Massachusetts, Ohio and Illinois 
Bars, whose knowledge and experience in the Laws and Practice 
of these States should be of material benefit to you. Their 
professional services are always available. 

" In this period of readjustment coupled with its abnormal 
conditions eating into the vitals of our energies and profits, 
now is the most propitious time to clean up your books. If 
you have any bad or doubtful accounts, you should know it 
before your Income Tax return is due, so as to avoid paying 
taxes on merely book profits which in reality may prove only 
losses. Go over your books; get up a list of delinquent 
accounts; send them in; or if you prefer, telephone 3466 



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196 Mattbr of Schwarz. 

First Department, February, 1921. [Vol. 195. 

Worth and ask for extension 2, Mr. Pugh; or for extension 4, 
Mr. Thomas, and either will call on you in connection with 
them. 

" Owing to our heretofore existing mutually profitable and 
what I always considered pleasant relations, it is no presump- 
tion for me to expect to receive from you the courtesy of an 
early, specific and favorable reply with some items enclosed or 
advices when I may expect to receive them, and with best 
wishes for Nineteen Twenty, I remain 

" Sincerely yours, 
AMS-2 (signed) A. M. SCHWARZ," 



n 



Charge 2. The respondent during the past two or three 
years has used and is now using printed or engraved letter- 
heads, cards and other stationery of which the following is a 
copy: 

"Adolph M. Schwarz, 
"Attorney and Counselor at Law. 
" 299 Broadway, New York. 
" Boston Chicago 

" Kimball Building First Natl Bank Bldg. 

" Philadelphia Cleveland 

" Land Title Building Leader Building 

" Pittsburg Detroit 

" Frick Building Dime Bank Building 

" Private Office." 

That the respondent, some time prior to July, 1917, applied 
for admission to the bar of the State of Michigan and the 
State Board of Law Examiners of that State refused to recom- 
mend him to the Supreme Court for admission and he has 
never been admitted and is not now admitted to the bar or 
entitled to practice as an attorney and counselor at law in 
that State; that the respondent has never been admitted to 
the Bar of the State of Pennsylvania and is not now and never 
was admitted to practice as an attorney and counselor at law 
in that State; that the respondent by the use of these letter- 
heads, cards and stationery has falsely represented to numerous 
persons and corporations that he is an attorney and counselor 
at law, entitled to practice as such in the States of Michigan 



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Matter of Schwarz. 197 

App. Div.] First Department, February, 1921. 

and Pennsylvania and has law offices in the cities of Detroit, 
Philadelphia and Pittsburg in said states. 

It appears from the record before us, and the respondent 
admits, that he sent out some 4,500 copies of the letter set 
forth in the petition. He claims that said letters were sent 
only to former clients of his and that he is in no way censurable 
for so doing. In the first place the letter plainly in its heading 
holds out to its recipients that the respondent is an attorney 
and counselor at law and practicing as such in the State of 
Pennsylvania, where he has offices in Philadelphia and Pitts- 
burg, and in the State of Michigan, where he has an office in 
Detroit. He is not a member of the bar of either of those 
States and the heading contains a palpable suggeatio falsi. It 
should be noted further that there is nothing in the heading 
that suggests a business occupation or a collection agency, 
but it plainly sets forth that it is issued from the private office 
of an attorney and counselor at law. * The letter speaks for 
itself. It is obviously a self-laudatory solicitation for employ- 
ment for professional services. It can only be properly 
characterized as a wholesale circularization for the purpose of 
obtaining business. When this respondent and his self- 
advertising methods were before this court before, we said 
(in 175 App. Div. 335) of the letters, circulars and advertise- 
ments then submitted for our inspection: " They are typical 
of modern advertising business methods and would be appro- 
priate to the Exploitation of patent medicines or other pro- 
prietary articles, but are utterly abhorrent to professional 
notions or standards. Unless the ancient and honorable 
profession of the law, whose practitioners are officers of the 
court of the highest fiduciary character, under obligations of 
service to the State, to the community and to the court, is to 
be degraded to the rank of a quack medicine business enter- 
prise, the advertising and business solicitation methods here 
under review must be emphatically and absolutely condemned." 

We said again: " The court has no disciplinary supervision 
of business enterprises. It has jurisdiction over its own 
officers and is authorized to discipline any attorney who is 
guilty of professional misconduct. We are of the opinion that 
by using the methods, letters, circulars and advertisements 
here under consideration the respondent is guilty of professional 



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198 Matter of Schwarz. 

First Department, February, 1921. .[Vol. 195. 

misconduct. If respondent wishes to retain and carry on the 
business which he claims is so valuable to him, he may do so 
outside of the profession whose standards and rules of conduct 
he has violated; he cannot remain a member of the Bar of this 
State and, while such member, indulge in such practices." 

One member of the court voted at that time for the respond- 
ent's disbarment, but the majority of the court, in view of 
representations made by the respondent that he would cheer- 
fully accept and abide by the rule of guidance laid down by 
the court, contented themselves with administering a severe 
censure with a statement that upon his refraining from further 
use of such methods no further action would be taken, but 
added, " Respondent and the bar generally are warned that 
such conduct is not to be tolerated, and repetition thereof will 
lead to disbarment." 

The respondent was again before this court in a summary 
proceeding. In Matter of Rowe Co., Inc. (191 App. Div. 179) 
we affirmed an order denying a motion to compel him as an 
attorney to pay over certain moneys which had been collected 
by him as a collection agent in Pittsburg, Penn., upon the 
ground that as the acts complained of had not been committed 
in this State or as an attorney the court was without juris- 
diction to proceed summarily, but we said: " We think this 
record discloses matters, however, which should be the subject 
of investigation. Respondent is an attorney in this State. 
He uses a letterhead, quoted above, which is calculated to 
create the impression that he maintains other offices as an 
attorney in the cities therein enumerated at the places desig- 
nated. He has no office as an attorney at the Frick Building 
in Pittsburg, Penn., and he is not authorized to practice law 
in that State. What he maintains there is only a collection 
agency. An attorney has no right to use a deceptive and 
misleading caption on his office stationery, intended to obtain 
business upon the faith of his professional character, when in 
fact he cannot act in such a capacity in at least one of the 
localities listed. It would be a fraud upon the public to allow 
an attorney to induce the placing of matters in his hands by a 
representation that he was an attorney practicing in various 
States and then have him resist the enforcement of the usual 
remedies applicable to the protection of a client's rights, upon 



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Matter of Schwabz. 199 

App. Div.] First Department, February, 1921. 

the ground that he was not qualified as an attorney in the 
State where a collection was to be made and, therefore, could 
not be held to the strict accountability incident to the pro- 
fessional relationship." 

In the matter at bar we agree with the learned official 
referee who said that after due consideration he could not 
" avoid the conclusion that the respondent's conduct did con- 
stitute such professional misconduct, * * * I cannot 
believe that by the adoption of Canon 27 of the Canons of 
Ethics it was intended to permit such energetic and persistent 
appeals accompanied by self laudatory statements as the 
circulars disclose. The circular, Exhibit 3, is to my mind as 
typical of modern advertising business methods and as abhor- 
rent to professional notions or standards as were the advertise- 
ments considered by this court in its opinion in 175 App. Div. 
335, particularly when we consider that respondent thereby 
circularized about 4,500 persons." 

The respondent again expresses his desire to abide by any 
direction the court may see fit to make herein. The warning 
heretofore administered, however, was too emphatic to admit 
of misinterpretation. It is evident that the respondent has 
no conception of the ethics of the profession and is obsessed 
by the notion that self-advertisement is a proper means of 
obtaining professional employment and that his efforts are 
directed to so shaping his letters and circulars as to obtain the 
results of such advertisement and at the same time escape 
judicial condemnation. He had fair warning but has deliber- 
ately violated the spirit of our former decision while asserting 
that he has observed its letter. The court told him plainly 
that if he wished to continue his business, for that is what he 
then claimed it was, in the manner and by the methods 
employed, he must do it as a business man and not masquerade 
as a professional man while violating the fundamental ideals 
and principles of the profession, 

As he has not heeded the sharp warning there given, he is 
disbarred. 

Lattghlin, Dowling, Merrell and Grejinbaum, JJ., 
concur. 

Respondent disbarred. Settle order on notice. 

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200 Turnurb v. Brettung. 

First Department, February, 102L [Vol. 1M. 

'^'^■ ' '', 



George E. Tttrnxtre and Others, Copartners Doing Business 
under the Firm Name and Style of Lawrence Turnure & 
Company, Appellants, v. Charlotte G. BRErnrNt* and 
Others, Copartners Doing Business under the Firm Name 
and Style of Breitung & Company, Respondents. 

First Department, February 11, 1921. 

Evidence — forgery of aeoeptanoe of draft — admiAsibility of expert 
evidence — standards for comparison of handwriting — disputed 
"signatures " — Code of Civil Procedure, section 961d, construed. 

In an action to recover upon a draft claimed to have been drawn upon the 
defendants by one H., payable to the order of himself, accepted by the 
defendants by one B., and thereafter indorsed and delivered to plaintiffs 
by H., before maturity for value, it was contended that the acceptance 
by B. was forged. To prove the forgery defendants relied upon the 
testimony of a handwriting expert who based his opinion on a comparison 
of the signature on the draft with three classes of signatures, viz.: 
(1) Specimen signatures of B., testified by him to have been written by 
him; (2) specimen signatures of H. and writings, testified by witness 
for plaintiff as being the signatures and writings of H. ; and (3) specimen 
signatures of B., testified to by him as not having been written by himself, 
but testified to by the defendants' expert as, in his opinion, after com- 
parison thereof with specimens (1) and (2), to have been written by H. 

Held, that specimen signatures and writings (1) and (2), having been properly 
proved by common-law evidence to have been written by the respective 
parties, were admissible as standards for the purpose of comparison 
by the handwriting expert, under section 961d of the Code of Civil 
Procedure. 

However, as specimen signatures (3), testified to by B. as not having been 
written by himself, were not proved by common-law evidence to have 
been written by H., but were merely testified to by defendants' expert as, 
in his opinion, to have been written by H., they were for this reason 
inadmissible, as not only introducing into the case a collateral issue but 
also using as a standard for determining the authenticity of a disputed 
signature specimens of handwriting not proved by common-law evidence. 

Where, in an action involving the forgery of a signature to a draft, a hand' 
writing expert relies very largely on a comparison of an alleged forged 
signature with disputed standards, giving little testimony as to reliance 
on properly proved standards, and admits that if it were not for the 
disputed standards it would be difficult to prove a forgery, it cannot 
be said that the admission of such latter standards did not constitute 
reversiWe error. 



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Turnure v. Brbitung. 201 

App. IMv.] First Department, February, 1921. 

Appeal by the plaintiffs, George E. Turnure and others, 
from a judgment of the Supreme Court in favor of the defend* 
ants, altered in the office of the clerk of the county of New 
York on the 28th day of February, 1920, upon the verdict of 
a jury, and also from an order entered in said clerk's office on 
the 2d day of March, 1920, denying plaintiffs' motion to set 
aside the verdict and for a new trial made upon the minutes. 

Nathan F. George of counsel [Forsyth Wickee, attorney], for 
the appellants. 

Samuel Seabury of counsel [Otto C. Sommerich with him on 
the brief; Katz & Sommerich, attorneys], for the respondents. 

(JI/ARKJS, a . J • I 

The plaintiffs sued upon a draft which they claim was 
drawn May 28, 1919, upon the defendants, respondents, by 
one Mariano Herrera, payable to the order of himself, ninety 
days after date, accepted by the defendants and indorsed and 
delivered by said Mariano Herrera to the plaintiffs, the holders 
thereof, before maturity for value. Respondents claimed that 
the signature " E. N. Breitung," on the draft, by which signa- 
ture the draft purported to be accepted by them, was not 
written by the respondent Edward N. Breitung but was forged 
by said Mariano Herrera. To prove the forgery claimed 
respondents relied upon the testimony of a handwriting expert 
who based his opinion that the signature " E. H. Breitung " on 
the draft in suit was a forgery and was forged by Mariano 
Herrera upon a comparison of said signature with three classes 
of so-called standards as follows: 

(1) Specimen signatures "E. N. Breitung" testified to by 
Edward N. Breitung as having been written by him. 

(2) Specimen signatures " Mariano Herrera " and writings 
testified to by witness for plaintiff as being the signatures and 
writing of Mariano Herrera. 

(3) Specimen signatures " E. N. Breitung " testified to by 
Edward N. Breitung as not having been written by himself 
and testified to by respondents' expert as, in his opinion, after 
a comparison thereof with specimens (1) and (2), to have been 
written by Mariano Herrera. 

The appellants strongly object to the admission of (3) the 



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202 Turnure v. Breitung. 



First Department, February, 1981. [Vol. 196. 

so-called " disputed " signatures of E. N. Breitung as standards 
of forgeries by Mariano Herrera, and, it is upon the exception 
taken to the admission in evidence of these signatures as 
standards of forgeries by Herrera that the appellants urge 
their appeal. 

Section 961d of the Code of Civil Procedure provides that 
" Comparison of a disputed writing with any writing proved 
to the satisfaction of the court to be the genuine handwriting 
of any person, claimed on the trial to have made or executed 
the disputed instrument, or writing, shall be permitted and 
submitted to the court and jury in like manner." The ques- 
tion presented being whether Breitung or Herrera signed the 
acceptance of the draft in suit, it is clear that specimen signa- 
tures of E. N. Breitung, properly proved by common-law 
evidence to have been written by him, and specimen signatures 
of Mariano Herrera, properly proved by common-law evidence 
to have been written by him, were admissible in evidence as 
standards for the purpose of comparison by a handwriting 
expert to determine whether the signature upon the draft in 
question was, as a matter of fact, though purporting to be 
written by Breitung, written by him or by Herrera. In each 
case these standards were proved to the satisfaction of the 
court to be the genuine handwriting of the person claimed 
on the trial to have made or executed the disputed instrument 
or writing, to wit, the draft sued upon, and were properly 
admitted in evidence. But the specimens known as Exhibits 
" F " and " G " " E. N. Breitung," while testified to by 
Edward N. Breitung as not having been written by himself; 
were not proved by common-law evidence to have been 
written by Herrera, but were testified to by the respondents' 
expert as, in his opinion, after a comparison with the proven 
signatures of both Breitung and Herrera to have been written 
by Herrera. This was i\ot only to introduce a collateral issue 
into the case, but also to use as a standard for the purpose of 
determining the authenticity of the disputed signature in 
suit, to wit, that upon the draft, specimens of handwriting 
not proved by common-law evidence to have been the hand- 
writing of the person claimed to have written it, namely, 
Herrera, but dependent solely upon the opinion of an expert 
witness that it was his handwriting. 



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Tubnure v. Breitung. 203 

App. Div.] First Department, February, 1981. 

In University of Illinois v. Spalding (71 N. H. 163) the 
court said: " The whole doctrine of comparison presupposes 
the existence of genuine standards. Comparison of a disputed 
signature in issue with disputed specimens would not be 
comparison in any proper sense. When the identity of 
anything is fully and certainly established, you may compare 
other things with it which are doubtful, to ascertain whether 
they belong to the same class or not; but when both are 
doubtful and uncertain, comparison is not only useless as to 
any certain result, but clearly dangerous and more likely to 
bewilder than to instruct a jury. If disputed signatures were 
admissible for the purpose of comparison, a collateral inquiry 
would be raised as to each standard; and the proof upon 
this inquiry would be comparison again, which would only 
lead to an endless series of issues, each more unsatisfactory 
than the first; and the case would thus be filled with issues 
aside from the real question before the jury. ,, 

In People v. Molineux (168 N. Y. 264, 327) Judge Werner 
said: " The third objection made by the defendant to the 
standards of comparison adopted at the trial is to the admission 
of the ' Barnet ' letters and ' Cornish ' letters. The ' Barnet ' 
letters were undoubtedly admitted in the first instance to 
support the charge that the defendant had killed Barnet, and 
the ' Cornish ' letters to sustain the chasge that he murdered 
Mrs. Adams. Both were subsequently treated as evidence 
tending to connect the defendant with each of the crimes 
said to have been committed by him. All of these letters 
were also used as standards of comparison from which to 
determine who wrote the poison package address. They may, 
therefore, be considered together for the purpose of review 
under this head. The statutes of 1880 and 1888* provide 
that the comparison of a disputed writing may be made 
with any writing proved to the satisfaction of the court to 
be genuine. The words ' proved to the satisfaction of the 
court ' are to be construed in the light of the obvious purpose 
for which these statutes were enacted. At common law a 
paper properly in evidence for general. purposes can be com- 

* See Laws of 1880, chap, 36, as amd. by Laws of 1888, chap. 555; now 
Code Civ. Proc. § 961d, as added by Laws of 1909, chap. 65.— [Rep, 



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204 Turnurb v. BRErnrtfo. 

First Department, February, 1921. [VoL 198. 

pared with a disputed writing, but only when the genuineness 
of the handwriting of the former is admitted or proved beyond 
a reasonable doubt. [Citing cases.] Since these statutes were 
designed to amplify and broaden the common-law rule by 
permitting the use of genuine writings as standards of com- 
parison, even when they are not competent or relevant for 
other purposes, it must be assumed that the language prescrib- 
ing the manner in which the genuineness of such writings is 
to be established was carefully and deliberately chosen by 
the Legislature. While it is obvious that the words * proved 
to the satisfaction of the court ' do not invest the trial court 
with a mere personal discretion which is to be exercised without 
reference to rules of evidence, it is equally plain that the failure 
of these statutes to prescribe the precise method or degree of 
proof necessary to establish the genuineness of a writing for 
purposes of comparison with a disputed writing renders it 
necessary to resort to the general rules of the common law 
for that purpose. Thus the genuineness of a writing may be 
established (1) by the concession of the person sought to be 
charged with the disputed writing made at or for the purposes 
of the trial, or by his testimony; (2) or by witnesses who 
saw the standards written, or to whom, or in whose hearing, 
the person sought to be charged acknowledged the writing 
thereof; (3) or by witnesses whose familiarity with the hand- 
writing of the person who id claimed to have written the 
standard enables them to testify to a belief as to its genuineness; 
(4) or by evidence showing that the reputed writer of the 
standard has acquiesced in or recognized the same, or that 
it has been adopted and acted upon by .him in his business 
transactions or other concerns. 

" Since common-law evidence is competent to establish the 
genuineness of a writing sought to be used as a standard 
of comparison, it is apparent, in the absence of a statutory 
rule as to the degree of proof to be made, that the general 
rule of the common law as to the sufficiency of evidence must 
prevail. In civil cases the genuineness of such a paper must 
be established by a fair preponderance of the evidence and 
in criminal cases beyond a reasonable doubt. Writings proved 
to the satisfaction of the court by the methods afrid under 
the rules adverted to, may be used as standards for purposes 



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Turnurb v. BRErnjNG. 205 

App. Div.] * First Department, February, 1921. 

of comparison with a disputed writing, subject, however, to 
the qualification that writings which are otherwise incompe- 
tent, should never be received in evidence for purposes of 
comparison." 

In People v. Carey (148 N. Y. 487) the court said: " The 
effect of the statute which permits the introduction on a trial 
of other writings for the purpose of comparison is to permit 
the admission in evidence of only such writings as have been 
proved to the satisfaction of the court to be in the genuine 
handwriting of the person claimed to have executed the 
disputed instrument (Laws 1880, ch. 36, as amended by Laws 
1888, ch. 555). An examination of the record in this case 
discloses that the court admitted this testament, not as the 
genuine handwriting of the defendant, but as his handwriting 
alleged to be genuine. Until its genuineness was established 
to the entire satisfaction of the court it was not admissible 
for the purpose of comparison." 

Clark v. Douglass (5 App. Div. 547) was an action to 
recover on a note against the indorsers thereof. The defense 
was forgery. To prove the indorsements genuine the trial 
judge allowed certain signatures in evidence as standards of 
the alleged indorsers' handwriting. These standards were 
sought to be proved genuine by the same witness who testified 
that the indorsements themselves were genuine. An expert 
witness then compared the indorsements with the standards 
and pronounced the indorsements genuine. It was objected 
that the standards were not sufficiently proven. The court 
said: " The absurdity of allowing a signature claimed to be 
a forgery to be compared with another which is also claimed 
to be a forgery, and concerning the genuineness of which there 
is considerable doubt, is apparent. And it seems clear that 
whatever may be the character of the proof used, it should 
be such as fairly establishes the genuineness of the standard 
offered. Without intending to lay down any inflexible rule, 
we are of the opinion that unless the evidence of the genuineness 
of the standard is so clear that if it were one of the issues in 
the case for the jury to determine a verdict should be directed 
in favor of its genuineness by the court, it may not properly 
be allowed in evidence." It also said: " Here, then, is a 
case where there is as much doubt about the genuineness of 



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206 Turnure i;. Beeftung. 



First Department, February, 1921. [VoL 195. 



the standards as there is about the genuineness of indorse- 
ments; yet * * * they [the standards] are received by 
the court as genuine, and the jury are practically told that if 
the indorsements were written by the same hand that wrote 
the standards they are the genuine indorsements * * V 

It seems to me from an examination of the record that as 
it appears the expert's testimony shows that he relied very 
largely on a comparison of the draft in suit with the disputed 
standards, as he gave very little testimony of a comparison 
of the draft with the Herrera standards, and as he said that 
without the disputed standards it would be very difficult to 
prove a forgery, and as the trial judge in his charge allowed 
the jury to use all these standards freely as they saw fit in 
order to arrive at the question of forgery, we are forced to 
the same conclusion as was the court in Clark v. Douglass 
(supra) where it said: " In the case before us, the trial court, 
against the weight of evidence, adopted the standards as 
genuine. The question for the jury was, therefore, practically 
narrowed down to whether the same hand wrote both the 
signature on the standards and the indorsements; and if, 
from the testimony of the expert or from their own inspection 
and comparison they concluded that it did, a verdict was 
forced against the appellants upon very insufficient evidence. 
It is true that there was another standard used by the expert 
and the jury that was conceded to be the genuine signature 
of Smith, but this does not cure the error or relieve the case 
from the effect which the use of the other standard must 
necessarily have had upon the verdict. It seems clear that 
from such an error great prejudice was likely to result to the 
appellants, and for that reason we conclude that a new trial 
should be granted/ ' 

In the case at bar a very close and difficult issue was pre- 
sented. Mr. Breitung himself was in doubt as to whether 
certain of the signatures purporting to have been made by 
him were as a matter of fact written by him. We are satisfied 
that the so-called disputed standards " F " and " G " were 
improperly admitted into evidence as standards in view of 
the fact that they were not properly proved to be the hand- 
writing of Herrera, who was claimed to be the writer of the 
alleged fraudulent acceptance upon the draft in suit. It is 



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Boko & Co., Inc., v. Atlantic Woolen Mills, Inc. 207 

App. Div.] First Department, February, 1921. 



impossible to say that the erroneous admission of this evidence 
did no harm to the appellants. 

It follows that the judgment and order appealed from 
should be reversed and a new trial ordered, with costs to the 
appellants to abide the event. 

Laughlin, Smith, Page and Merrell, JJ., concur. 

Judgment and order reversed and new trial ordered, with 
costs to appellants to abide event. 



George Boiko & Co., Inc., Respondent, t;. Atlantic Woolen 
Mills, Inc., Appellant. 

First Department, February 11, 1921. 

Sales — when title passes where goods exist at time of contract and 
no place of delivery is mentioned — action for purchase price — 
when title to unascertained goods passes — appropriation of such 
goods to contract with implied consent of purchaser. 

Where two bales of overcoat clippings were already made up and in a 
deliverable stater at the time defendant placed a written order therefor, 
and a bale of worsted clippings was in existence and only required sorting 
to separate different grades and colors, title to the three bales passed 
when the worsted clippings were sorted, made into a bale and put in 
deliverable shape, and the three bales were set aside and tagged. There- 
after, under section 144 of the Personal Property Law, the seller could 
maintain an action for the purchase price if the purchaser wrongfully 
refused or failed to pay. 

When no place of delivery is specified in the contract of purchase or sale 
of goods, the place of delivery is the seller's place of business. 

Even though the transaction be regarded as a contract for the sale of unas- 
certained goods, in so far as the bale of worsted clippings was concerned, 
title would pass when the bale was made up, tagged and put aside, in a 
deliverable state awaiting defendant's removal of the same, as such act 
would constitute an unconditional appropriation of these goods to the 
contract with the implied consent of the purchaser. 

In such case defendant's consent to the appropriation of the goods to the 
contract may be implied by sending a truckman for the goods, and also 
by not claiming the right to make the selection or to inspect the goods 
after selection. 

8ioth and Dowlino, JJ., dissent, with opinion. 



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208 Boiko & Co., Inc., v. Atlantic Woolen Mills, Inc. 

First Department, February, 1921. [Vol. 195. 



Appeal by the defendant, Atlantic Woolen Mills, Inc., from 
an order and determination of the Appellate Term of the 
Supreme Court, First Department, entered in the office of the 
clerk of said Appellate Term on the 29th day of March, 1920, 
affirming a judgment of the City Court of the City of New 
York in favor of the plaintiff, and an order denying defendant's 
motion for a new trial. 

Meyer Boskey of counsel [Wise & Seligsberg, attorneys], for 
the appellant. 

George W. Glaze of counsel [Glaze & Fine, attorneys], for the 
respondent. 

Page, J.: 

The plaintiff was engaged in the business of buying and 
selling woolen rags. The defendant was manufacturing shoddy 
for woolen mills, having its mill at Dryden, N. Y., and its 
office in the city of New York, with S. Bernstein & Sons, Inc., 
Mr. Solomon Bernstein being president of both corporations. 
The testimony of the plaintiff's president, which the jury 
accepted, was briefly as follows: On July 8, 1918, Mr. Bernstein 
called him on the telephone and asked whether he had khaki 
clippings, and he replied that he had and would sell him 
two bales of overcoat clippings and one bale of worsted 
clippings, and quoted a price of forty-five cents a pound for 
the overcoat clippings and seventy-five cents a pound for 
the worsted. Mr. Bernstein told him that he would purchase 
them and would confirm the purchase in writing, which he 
did on the tenth of July. The overcoat clippings were already 
baled, and on the same day that the written confirmation was 
received the worsted clippings were sorted out and made 
up into a bale. The three bales in the afternoon of that 
day were tagged and set apart to be held for the defendant 
to call for them. Thereafter the defendant sent a truck to 
plaintiff's place of business between twelve noon and twelve- 
thirty o'clock. The shipping clerk told the truckman that 
the men were out at lunch, but that if he would wait five 
minutes some of them would be in and would get the bales 
down for him. The truckman thereupon drove off. The 
plaintiff's president repeatedly telephoned the defendant to 



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Boko & Co., Inc., v. Atlantic Woolen Mills, Inc. 209 

A pp. Dir.] First Department, February, 1991. 

send for the goods and on August 22, 1918, wrote to the 
defendant: " The two bales of khaki overcoatings and one 
bale of khaki worsteds sold you on July 10th are still awaiting 
your call. We cannot ask you for money as long as you have 
not taken the stock in and we need the money, so would 
ask you to kindly send for these without delay." Defendant 
replied on August 31, 1918: " We needed the stock urgently 
when we purchased it from you, and as a matter of fact we 
sent for it and called you up several times for same, and 
you did not have it at the time you stated you would have it. 
Due to government regulations we are not in a position to 
handle this stock any more, and we considered it cancelled 
long ago." To this the plaintiff replied stating that the 
calling up had been done by the plaintiff and not by the 
defendant, and that the only time a truckman had called for 
the goods was when the plaintiff's men were at lunch and 
the driver refused to wait five minutes for them to return, 
which they presumed was by defendant's orders ; and reiterated 
the demand for the defendant to take and pay for the three 
bales. Not hearing from the defendant, plaintiff brought this 
action to recover the purchase price of the goods in the City 
Court of the City of New York, and recovered a judgment, 
which was affirmed by the Appellate Term* 

The question to be determined on this appeal is whether 
the title to the goods passed from plaintiff to defendant, and 
the defendant wrongfully refused to pay. If it did, the 
plaintiff could maintain the action. (Sales of Goods Act 
[Pers. Prop. Law], § 144, as added by Laws of 1911, chap. 571.) 
No place of delivery having been specified in the contract, 
the place of delivery was the seller's place of business. (Id. 
§ 124, as added by Laws of 1911, chap. 571.) The two bales 
of overcoat clippings were already made up and in a deliver- 
able state at the time the written order was received by the 
plaintiff, and the worsted clippings were existing goods in 
possession of the plaintiff. Very little sorting of the latter was 
necessary, as plaintiff had received some clippings of this grade 
from a customer and needed only to sort the worsted clippings 
from his own stock. This sorting was to separate clippings of 
different grades and colors. The two bales were in condition 
App. Div.— Vol. CXCV. 14 



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210 Boko & Co., Inc., v. Atlantic Woolen Mills, Ino. 

First Department, February, 1981. [Vol. 1&5. 

to be immediately appropriated to the contract when the 
contract was made. The title to the three bales passed when 
the worsted clippings were sorted and made into a bale so 
that they were in deliverable shape and they were all set 
aside and tagged. (Id. § 100, rules 1, 2, as added by Laws of 
1911, chap. 571; Ferry v. South Shore Growers & Shippers 
Assn., 189 App. Div. 542.) If, as Mr. Justice Smith contends, 
we should treat this as a contract for the sale of unascertained 
goods, in so far as the bale of worsted clippings is concerned, 
title would pass when the bale was made up, tagged and put 
aside, in a deliverable state awaiting the call of the defendant's 
truckman. That would be an unconditional appropriation of 
these goods to the contract with the implied consent of the 
buyer. (Id. § 100, rule 4, as added by Laws of 1911, chap. 
571.) The consent of the defendant may be implied from 
two circumstances: (1) The defendant sent its truckman for 
the goods; he came at an hour when it was not possible to 
make delivery and refused to wait for •five minutes. His 
refusal was not on the ground that the goods had not been 
selected or inspected by the defendant, nor was there any 
claim on the part of the defendant on the trial that it had the 
right to inspect. (2) The defendant, by not claiming the right 
to make the selection or to inspect the goods after the selection, 
vested the vendor with implied authority to make the selection 
and thus vest the title in the vendee. {Cooke v. Millard, 
65 N. Y. 352, 366.) In that case, upon which Mr. Justice 
Smith relies, the distinction is made between the sale by 
sample of goods to be manufactured, and the sale of existing 
chattels where the selection from a mass of the same kind 
was required. The court said: " This doctrine requires the 
assent of both parties, though it is held that it is not necessary 
that such assent should be given by the buyer subsequently 
to the appropriation by the vendor. It is enough that the 
minds of both parties acted upon the subject and assented 
to the selection. The vendor may be vested with an implied 
authority by the vendee to make the selection and thus to 
vest the title in him (Browne v. Hare, 3 H. & N. 484; S. C, 
4 id. 822). This doctrine would be applicable to existing 
chattels where a mere selection from a mass of the same kind 
was requisite. On the other hand, if the goods are to be 



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Boiko & Co., Inc., v. Atlantic Woolen Milus, Inc. 211 

App. Div.] First Department, February, 1921. 

manufactured according to an order, it would seem that the 
mind of the purchaser after the manufacture was complete, 
should act upon the question whether the goods had complied 
with the contract [Citations]* This point may be illustrated 
by the case of a sale by sample, where the seller agrees to 
select from a mass of products certain items corresponding 
with the sample, and forward them to a purchaser. The 
act of selection by the vendor will not pass the title, for the 
plain and satisfactory reason that the purchaser has still 
remaining a right to determine whether the selected goods 
correspond with the sample." 

Thus it appears that the illustration of the sale by sample 
applied to the case of a sale of goods to be manufactured, and 
not to a mere selection from a mass of existing chattels, to 
which the first part of the quotation applied. 

And again, preceding the quotation in Mr. Justice Smith's 
opinion from the case of Bog Lead Co. v. Montague (10 C. B. 
[N. S.] 481), a very illuminating portion of the Cooke v. Millard 
opinion reads: " It cannot be conceded that there was any 
acceptance in the present case by reason of the acts and 
words occurring between the parties after the parol contract, 
and before the goods were prepared for delivery. There could 
be no acceptance without the assent of the buyers to the 
articles in their changed condition and as adapted to their use. 
If the case had been one of specific goods to be selected from 
a mass without any preparation to be made, and nothing to 
be done by the vendor but merely to select, the matter would 
have presented a very different aspect. This distinction is 
well pointed out by Willes, J., in Bog Lead Company v. 
Montague (10 C. B. [N. S.] 481)." 

In the case of Cooke v. Millard (supra) the defendants 
desired to purchase certain kinds of lumber in quantities 
to be specified, and were shown by plaintiffs the lumber 
then in their yard, which was of the desired quality but needed 
to be dressed and cut into different sizes. There was much 
more lumber in the yard shown to defendants than was 
requisite for their purposes. An oral order was given by 
defendants for certain quantities and sizes of lumber at specified 
prices. No particular lumber was selected or set apart to 
fill the order, nor was any part of it then in condition to be 



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212 Boiko & Co., Inc., v. Atlantic Woolen Mius, Inc. 

First Department, February, 1081. [Vol. 195. 

accepted or delivered. The lumber after being prepared and 
dressed according to the agreement was piled on the plaintiffs' 
dock and notice sent to the person designated for that purpose 
by the defendants. Two days thereafter the lumber was 
destroyed by fire. The Commission of Appeals clearly dis- 
tinguished the rules applicable to that case, a contract for the 
sale of goods to be manufactured, from the rules applicable 
to the instant case, which was the sale of existing goods to 
be selected from a mass of the same kind. In the former 
they held that title did not pass until the goods had been 
inspected and accepted by the purchaser, while in the latter 
the vendor had the implied authority from the vendee to 
make the selection and title passed when the vendor made the 
selection and everything was done by the vendor to put the 
goods in deliverable shape and they were unconditionally 
appropriated to the contract. 

In the instant case the clippings were waste, from the 
manufacture of overcoats and uniforms for the use of the 
army. They were staple goods, ascertained, in existence and 
at the time of the contract in possession of the seller. The two 
bales of overcoat clippings were in deliverable condition when 
the contract was made. The one bale of worsted clippings 
was in possession of the seller and only required to be selected 
from other clippings. There was no sample to which they 
were required to conform, and no process of manufacture 
through which they had to go, to put them in deliverable 
shape; they needed merely to be gathered and selected from 
the mass, baled and tagged. (Bristol Mfg. Corp. v. Arkwrigkt 
Mills, 213 Mass. 172, 176; Leonard v. Carleton & Hovey Co., 
230 id. 262, 264; Sanger v. Wdterbury, 116 N. Y. 371, 374.) 
I am of opinion that title to the goods had passed and the 
plaintiff could maintain an action for the price. 

The determination of the Appellate Term should be affirmed, 
with costs. 

Clarke, P. J., and Greenbaum, J., concur; Dowling 
and Smith, JJ., dissent. 

Smith, J. (dissenting): 

Upon July 8, 1918, the defendant ordered of the plaintiff 
two bales of khaki overcoating clippings and one bale of 



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Boiko & Co., Inc., v. Atlantic Woolen Mills, Inc. 213 

App. Div.] first Department, February, 1931. 

khaki worsted clippings for suitings. The plaintiff was engaged 
in the manufacture of shoddy woolen cloth which was sold to 
the government. There is no claim here that there was any 
imposition upon the government. The goods were sold as 
shoddy cloth. The evidence is not clear whether or not at 
the time the order was given the overcoating clippings were 
baled. One of the plaintiff's witnesses swears, in one place, 
that they were nearly baled, and at another place that it 
was in process of baling. The worsted clippings for suitings, 
however, were not baled and, according to the evidence, they 
were required to be selected from a general mass in which 
there was mixed other rubbish or goodsr of a different kind. 
The plaintiff's witnesses swear that within a couple of days 
after the giving of the order the worsted clippings were also 
selected by one of the plaintiff's employees and baled, and 
that three bales of goods, two of overcoating clippings and 
one of worsted clippings, were set aside and tagged and marked 
as for the defendant. The goods were to be delivered by the 
plaintiff at the seller's place of business. There is a dispute 
in the evidence as to the time the goods were sent for and as 
to the circumstances of the refusal of the plaintiff to deliver 
at that time. Upon this point the jury has found for the 
plaintiff, so that we must deem it established as a fact that 
the story of the plaintiff's witnesses is true and that at the 
time that these goods were sent for by the defendant it was 
at the noon hour when the men were away for their luncheon, 
and that the defendant's truckman refused to wait until they 
would return in order to bring down the bales. One of the 
plaintiff's witnesses claims to have telephoned several times 
to the defendant stating that the goods were ready and asking 
when they could be delivered, and that on August twenty- 
second he wrote to the defendant that the goods were still 
awaiting its call. 

The plaintiff has brought this action for goods sold and 
delivered, although confessedly there has never been any 
actual delivery of the goods, or any other delivery than could 
be implied from the baling of these goods and setting them 
aside for the defendant's order. The judgment asked and 
recovered is for the purchase price of the goods. The con- 
tention of the defendant appealing is that the title in the 



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214 Boiko & Co., Inc., v. Atlantic Woolen Mills, Inc. 

First Department, February, 1921. [Vol. 195. 

goods never passed and, if any liability exists, the liability 
is only for failure to accept the goods. 

Before referring to the provisions of the Sales of Goods Act, 
it may be well to refer preliminarily to a few questions raised 
in reference to this contract. It is first argued that the title 
has at least passed to two of the bales which are claimed to 
have been already put up at the time of the making of the 
contract, and that the title passed to the third bale at the 
time that it was thereafter put up and set aside and marked 
with the defendants name. But this contract was an entire 
contract for three bales. I do not conceive that it can be 
divisible so as to hold that title passed as to part of the contract 
at one time and to another part at another time. In Cooke v. 
Millard (65 N. Y. 352) the contract was there held to be 
an executory contract of sale. The goods were destroyed 
by fire. The plaintiffs, the vendors, sued for the purchase 
price, and it was there claimed that at least title to part of 
the goods had passed although another part had not been 
put in deliverable condition so as to pass title. In discussing 
this claim the court said: " The contract called for distinct 
parcels of surface pine boards, clapboards and matched ceiling. 
Part of the lumber was surfaced, and a portion of it still in 
the rough. The clapboards were manufactured from stuff 
one and a quarter-inch thick. It had to be split, surfaced 
and rabbeted. The order for the various items was a single 
one, there being 15,441 feet of the surface pine, 10,144 feet of 
clapboards, and 8,000 feet of matched ceiling. The surface 
boards and the ceiling were in existence, and only needed 
dressing to comply with the order. Whether the clapboards 
can be deemed to have been in existence, may be more doubtful. 
If a part of the order is within the Statute of Frauds and a 
portion of it without it, the whole transaction must be deemed 
to be within it, as an entire contract cannot, in this case, be 
divided of apportioned. (Cooke v. Tombs, 2 Anst. 420; 
Chater v. Beckett, 7 T. R. 201 ; Mechelen v. Wallace, 7 A. & E. 
49; Thomas v. Williams, 10 B. & C. 664; Loomis v. NewhaU, 
15 Pick. 159.) I think it clear that the contract was in its 
nature entire. It was in evidence that the intention was 
to buy enough, in connection with what Percival had on hand, 
to make up a boat load. This could only be accomplished by 



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Boko & Co., Inc., v. Atlantic Woolen Mills, Inc. 215 

App. Div\] First Department, February, 1921. 

using the entire amount of the order. Accordingly, even if 
the contract for the clapboards was not a sale, it cannot be 
separated from the rest of the order, and the cases above 
cited are applicable." 

This contract, then, being an entire contract, cannot be 
apportioned and a recovery had for a part thereof, nor can it 
be held that the title passed to a part thereof before the title 
passed to the three bales ordered. The right of the plaintiff, 
therefore, to recover the purchase price must be determined 
as though none of the goods ordered had been baled and 
put in deliverable shape, or appropriated by the seller to 
the contract within the meaning of the statute hereinafter 
referred to. 

Again, under the evidence it is clear that the selection by 
the vendor of these goods for the purpose of placing them in 
the bales was not a selection " from the same kind " of goods, 
but was a selection from a mass of mixed goods, those corre- 
sponding with the order and other goods not corresponding 
therewith. The goods were to be selected, not from khaki 
clippings of different colors. The order appears to have been 
to select goods to correspond with a certain grade, which is 
spoken of by the plaintiff in his examination as grade 55. 
These goods were in a mass of rags in the plaintiff's premises. 
The baling itself is sworn to by the plaintiff as requiring from 
fifteen to twenty minutes, but the selection and assortment 
of these goods required " probably two or three hours." The 
plaintiff swears that the selection was made by " throwing 
out the impurities," and further, " to see that -there was no 
foreign material in it," and if there was any foreign material 
" that is cast aside." Significance is given to this evidence 
by the fact that this was in fact a " sale of rags," and the 
further evidence, which stands uncontradicted in this case, 
that ordinarily about forty per cent of goods delivered under 
such a contract are rejected as not coming up to grade. It 
is unnecessary, therefore, to consider that class of cases which 
refer to a selection to be made by the seller from goods " of 
the same kind." That expression might well be held to refer 
to fungible goods in respect of which the assent of the purchaser 
to the appropriation under rule 4 of section 100 of the Personal 
Property Law (as added by Laws of 1911, chap. 571) may be 



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216 Boiko & Co., Inc., v. Atlantic Woolen Mills, Inc. 

First Department, February, 1921. [Vol. 195. 

deemed to be implied. The goods clearly were unascertained 
goods, and there can be in respect of such goods no implied 
assent to an appropriation by the seller himself in order to 
pass tittle to "the purchaser. 

Again, there is no question here of a delivery as where the 
contract provides that the delivery shall be made to a carrier, 
in which case, upon the loss of the goods while in the hands 
of the carrier, the rule is sometimes stated that the title has 
passed to the consignee and may revest in the consignor 
upon a final rejection by the consignee if the goods do not 
correspond with the goods ordered. There was in the case 
at bar no delivery whatever, but a bare act of appropriation. 
The purchaser .sent his truck for the goods, but they were 
not received by the truckman and not delivered to him. 
For whatever reason, seems to me immaterial, as long as there 
was in fact no actual delivery either to the purchaser or to 
any one in his behalf. 

Again, the scheme of the act leaves the seller with ample 
remedy. If title has not passed and the goods cannot be 
readily sold in the market, he may sell the goods and sue the 
purchaser for refusal to accept the same, and recover the 
difference between the purchase price and the price which he 
has received therefor, under section 145 of the Personal 
Property Law (as added by Laws of 1911, chap. 571). Under 
the provisions of that law, however, as I read it, he is confined 
to that remedy unless the title has passed to the purchaser, in 
which case he can sue for the purchase price. (See Pers. Prop. 
Law, § 144, subd. 1, as added by Laws of 1911, chap. 571.) 
This action was brought for the purchase price, upon the 
theory that title has passed to the purchaser. There is no 
claim to recover the purchase price under subdivision 3 of sec- 
tion 144 (as added by Laws of 1911, chap. 571). That sub- 
division provides Ijiat, although the property has not passed, 
" if they cannot readily be resold for a reasonable price," the 
seller may offer to deliver the goods to the buyer, and if the 
buyer refuses them, he may notify the buyer that the goods are 
thereafter held for him as bailee, and he may thereafter treat 
the goods as the buyer's and maintain an action for the price. 
There is no proof in this case that these goods could not be 
readily sold in the market at a reasonable price. Such proof 



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Boko & Co., Inc., v. Atlantic Woolen Mills, Inc. 217 

App. Div.] First Department, February, 1921. 

is an essential element in a cause of action under subdivision 3 
of section 144. Moreover, under the statement of plaintiff's 
counsel upon the trial, it appeared that the goods could have 
been sold for a reasonable price. The plaintiff's counsel 
stated upon the trial that upon July tenth the government 
had established seventy cents as a maximum price, so that 
the defendant could go out on the market and buy it for 
five cents less. Under that statement by the plaintiff's 
counsel, the plaintiff could easily have sold these goods at a 
reasonable price, and would have had his right of action for 
his damages under section 145 of the Personal Property Law.. 
There is no'allegation in the complaint that the property could 
not have been sold at a reasonable price. Moreover, the 
plaintiff makes no such claim upon this argument, but bases 
its right to recover solely upon the fact that title to these 
goods had passed to the purchaser by reason of the selection 
made by the buyer and the setting apart of the goods appro- 
priated and tagging the same as the goods of the purchaser. 
The sole question here to determine is, therefore, as to whether 
under the facts in this case such an act on the part of the 
purchaser passes the title to the buyer which would authorize 
it to recover under the 1st subdivision of section 144 of the 
Personal Property Law, which distinctly authorizes an action 
to recover the purdhase price only where the property in the 
goods has passed to the purchaser. 

By section 98 of the Personal Property Law (as added by 
Laws of 1911, chap. 571) it is provided, where there is a con- 
tract to sell unascertained goods, no property in the goods is 
transferred to the buyer unless and until the goods are ascer- 
tained, but property in an undivided share of ascertained 
goods may be transferred as provided in section 87 (as added 
by Laws of 1911, chap. 571). The latter clause of this section 
is not claimed here to be material to this question. By 
section 100 (as added by Laws of 1911, chap. 571) rules 
are given for ascertaining the intention of the parties, and by 
rule 4 it is provided: " Where there is a contract to sell 
unascertained or future goods by description, and goods of 
that description and in a deliverable state are uncondition- 
ally appropriated to the contract, either by the seller with 
the assent of the buyer, or by the buyer with the assent of 



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218 Boko & Co., Inc., v. Atlantic Woolen Mills, Inc. 

First Department, February, 1921. [Vol. 195. 

the seller, the property in the goods thereupon passes to the 
buyer." The plaintiff's contention is that the selection from 
this mass of rags, containing foreign material and impurities 
as well as the goods which were properly applicable to the 
contract, is an appropriation by the seller to the contract with 
the assent of the buyer. This contention is challenged by 
the defendant. 

In Cooke v. Millard (supra) the defendants, desiring to 
purchase a bill of lumber, went to the plaintiffs' yard, where 
they were shown lumber of the desired quality but which, to 
meet their requirements, needed to be dressed and cut into 
different sizes. They gave a verbal order for certain quantities 
and sizes, amounting at the prices specified to $918.22, to 
be taken from the lots examined by defendants. There was 
a much larger quantity of lumber in the yard, and no particular 
lumber was selected or set apart to fill the order. It was 
defendants' intention to purchase enough to fill out a boat 
load. After giving the order, defendants pointed out the piles 
from which they desired the lumber to be taken and directed 
that, when prepared, it should be placed upon plaintiffs' dock 
and notice given of readiness to deliver. Plaintiffs filled 
the order, placed the lumber on their dock and gave notice, 
as agreed. It was not removed, and two days thereafter it 
was destroyed by fire. In an action to recover the contract 
price, it was held that the contract was in its nature entire and, 
though executory, was one of sale within the meaning of the 
Statute of Frauds; that the subsequent acts of defendants 
did not turn the executory contract into an executed one, 
and did not amount to an " acceptance and receipt " of the 
lumber so as to take the case out of the statute; that the 
title to the lumber, therefore, never became vested in the 
defendants, and they were not liable. It will be seen that 
the first question there decided was that this was an executory 
contract of sale. The property was cut into the sizes required 
by the purchaser and was placed upon the seller's dock, as 
was provided in the contract. The seller had in that case 
done everything that could be done by him to appropriate the 
property to the contract. Neverthless, it was held that such 
acts did not amount to an appropriation with the consent 
of the buyer so as to vest the title in the buyer. The opinion 



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Boiko & Co., Inc., v. Atlantic Woolbn Mills, Inc. 219 

App. Div.] First Department, February, 1021. 

of Commissioner Dwight in part reads as follows: " Proceed- 
ing on the view that this was an executory contract, it might 
still pass into the class of executed sales by acts ' of subsequent 
appropriation.' In other words, if the subsequent acts of 
the seller, combined with evidence of intention on the part 
of the buyer, show that specific articles have been set apart 
in performance of the contract, there may be an executed 
sale and the property in the goods may pass to the purchaser. 
(Blackburn on Sales, 128; Benjamin on Sales, chap. 5; Fragano 
v.Lon0,4B.&C.219; Rohdev. Tkwaites,6id.388] Aldridgev. 
Johnson, 7 E. & B. 885; Calcutta Company v. De Mattos, 
33 L. J. [Q. B.] 214, in Ex. Chamb.) This doctrine requires 
the assent of both parties, though it is held that it is not 
necessary that such assent should be given by the buyer 
subsequently to the appropriation by the vendor. It is 
enough that the minds of both parties acted upon the subject 
and assented to the selection. The vendor may be vested 
with an implied authority by the vendee to make the selection 
and thus to vest the title in him. (Browne v. Hare, 3 H. & N. 
484; S. C, 4 id. 822.) This doctrine would be applicable to 
existing chattels where a mere selection from a mass of the 
same kind was requisite. On the other hand, if the goods 
are to be manufactured according to an order, it would seem 
that the mind of the purchaser, after the manufacture was 
complete, should act upon the question whether the goods 
had complied with the contract. (See Mucklow v. Mangles, 
1 Taunt. 318; Bishop v. Crawshay, 3 B. & C. 415; Atkinson v. 
Bell, 8 id. 277.) This point may be illustrated by the case 
of a sale by sample where the seller agrees to select from a 
mass of products certain items corresponding with the sample, 
and forward them to a purchaser. The act of selection by 
the vendor will not pass the title, for the plain and satisfactory 
reason, that the purchaser has still remaining a right to deter- 
mine whether the selected goods correspond with the sample. 
(Jenner v. Smith, Law Rep., 4 C. P. 270.) In this case the 
plaintiff at a fair, orally contracted to sell to the defendant 
two pockets of hops, and also two other pockets to correspond 
with a sample, which were lying in a warehouse in London, 
and which he was to forward. On his return to London he 
selected two out of three pockets which he had there, and 



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220 Boiko & Co., Inc., v. Atlantic Woolen Mills, Inc. 

First Department, February, 1921. [Vol. 196. 

directed them to be marked to ' wait the buyer's order/ 
The buyer did no act to show his acceptance of the goods. 
The court held that the appropriation was neither originally 
authorized nor subsequently assented to by the buyer, and that 
the property did not pass by the contract. Brett, J., put in 
a strong form "the objection to the view that the buyer could 
have impliedly assented to the appropriation by the seller. 
It was urged, he said, ' that there was evidence that by 
agreement between the parties, the purchaser gave authority 
to the seller to select the two pockets for him. If he did so, 
he gave up his power to object to the weighing and to the 
goods not corresponding with the sample; for he could not 
give such authority and reserve his right so to object; and 
indeed it has not been contended that he gave up those rights. 
That seems to me to be conclusive to show that the defendant 
never gave the plaintiff authority to make the selection so 
as to bind him. Under the circumstances, therefore, it is 
impossible to say that the property passed/ (P. 278.) The 
same general principle was maintained in Kein v. Tupper 
(52 N. Y. 550), where it was held that the act of the vendor 
putting the goods in a state to be delivered did not pass the 
title, so long as the acceptance of the vendee, provided for 
under the terms of the contract, had not been obtained. 

" The result is, that if this sale, executory as it was in its 
nature, had not fallen within the Statute of Fravds, there would 
have been no sufficient appropriation by the vendor to pass the 
title. The transaction, so far as it went, was, even at com- 
mon law, an agreement to sell and not an actual sale." 

The court then proceeds to consider whether there had 
been an acceptance of this lumber, and on page 369 quotes 
from the opinion of Willes, J., in Bog Lead Co. v. Montague 
(10 C. B. [N. S.] 481), where it was said: " It may be that 
in the case of a contract for the purchase of unascertained 
property to answer a particular description, no acceptance 
can be properly said to take place before the purchaser has 
had an opportunity of rejection. In such a case, the offer to 
purchase is subject not only to the assent or dissent of the 
seller, but also to the condition that the property to be delivered 
by him shall answer the stipulated description. A right of 
inspection to ascertain whether such condition has been 



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Boiko & Co., Inc., v. Atlantic Woolen Mili£, Inc. 221 

App. Div.] First Department, February, 1921. 

complied with is in the contemplation of both parties to such 
a contract; and no complete and final acceptance, so as 
irrevocably to vest the property in the buyer, can take place 
before he has exercised or waived that right. In order to 
constitute such a final and complete acceptance, the assent 
of the buyer should follow, not precede, that of the seller, 
but where the contract is for a specific, ascertained chattel, 
the reasoning is altogether different. Equally, where the offer 
to sell and deliver has been first made by the seller and after- 
wards assented to by the buyer^and where the offer to buy 
and accept has been first made by the buyer and afterwards 
assented to by the seller, the contract is complete by the 
assent of both parties, and it is a contract the expression of 
which testifies that the seller has agreed to sell and deliver, 
and the buyer to buy and accept the chattel." 

Later the court cites from the opinion of Bramwell, B., 
in Coombs v. Bristol & Exeter R. Co. (3 H. & N. 510): " The 
cases establish that there can be no acceptance where there 
can be no opportunity for rejecting.' ' Further, in discussing 
the meaning of the word " acceptance " under the statute, the 
court said: " The buyer had a right to see whether the bulk 
was according to the sample, and until he had exercised that 
right there was no acceptance/ ' I do not find that the 
reasoning in this case has ever been questioned in this State. 

In the case cited the question involved both the Statute of 
Frauds and the passing of title under a valid sale. The 
question was there considered, first, as to whether there had 
been an appropriation by the seller with the assent of the 
buyer, and also the question whether there had been such 
an acceptance as would take the case out of the statute. 
I can see no distinction as to the passing of title between a 
purchase by sample and a purchase by description. If in a 
purchase by sample there can be no implied assent that the 
seller can appropriate the goods to the contract where they 
must be selected from a mass containing other goods of other 
kinds, I can find no implied assent of the buyer to the selection 
by the seller in a sale by description. Furthermore, where, 
as in the case cited, the goods were to be put in a deliverable 
state by sawing the lumber into different sizes, if that be 
held to be an executory contract of sale, and not a contract 



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222 Boiko & Co., Inc., v. Atlantic Woolen Mills, Inc. 

First Department, February, 1921. [Vol. 195. 

to manufacture, the same rule must apply as to the right in 
the seller to put those goods in such deliverable shape and 
appropriate them to the contract as in a sale by sample or 
a sale by description, where a selection must be made from a 
mass of mixed goods. 

In Andrews v. Cheney (62 N. H. 404) plaintiff had bought 
goods of defendant and paid for them. Defendant did not 
have in stock the goods wanted, and plaintiff selected from 
samples. The defendant agreed to have the goods at his 
store within two weeks, at which time plaintiff was to call 
for them. Within the stipulated time defendant got the 
goods into his store, set them apart by themselves and marked 
them with plaintiff's name. The goods, . together with the 
store, were destroyed by fire, the plaintiff not having called 
for them. Upon the question of title, the court said: " The 
property in the goods did not pass to plaintiff by virtue of 
the contract, for they were not then ascertained and may not 
have been in existence. The agreement on the part of the 
defendant was executory. He agreed to furnish goods corre- 
sponding to the samples selected by the plaintiff. If the goods 
subsequently procured and set apart by the defendant did 
not conform to the samples, the plaintiff had a right to reject 
them. It does not appear that he waived that right. The 
defendant was not concluded by his selection; he might 
have sold or otherwise disposed of the particular articles set 
apart by him and substituted others in their place. A contract 
of sale is not complete until the specific goods upon which it 
is to operate are agreed upon. Until that is done the contract * 
is not a sale but an agreement to sell goods of a particular 
description. It is performed on the part of the vendor by 
furnishing goods which answer the description. If, as in the 
case of a sale by sample, the specific goods are not ascertained 
by the agreement, the property does not pass until an appro- 
priation of specific goods to the contract with the assent of 
both parties. [Citing authorities.] If the plaintiff author- 
ised the defendant to make the selection, the property immedi- 
ately upon the selection vested in the plaintiff. (Aldridge v. 
Johnson, 7 E. & B. 885.) It not appearing the plaintiff gave 
such authority, the goods at the time of the fire were the 
property of the defendant and their destruction was his loss." 



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Boiko & Co., Inc., v. Atlantic Woolen Mills, Inc. 223 

App. Div.] First Department, February, 1921. 

And the rule of law thus announced seems to me to have 
found exact expression in the statute itself. Under section 
144 of the Personal Property Law (as added by Laws of 1911, 
chap. 571), provision is made for the recovery of the purchase 
price where the title has passed and also where title has not 
passed, where tender has been made and the goods are not 
readily salable at a reasonable price in the market. In 26 
Ruling Case Law, at page 628, the rule as regards a tender of 
property is thus stated: " In case of a debt payable in prop- 
erty, the effect of a tender is to satisfy the debt, by vesting 
the property tendered in the creditor; and to accomplish that 
result there should be such a separation or designation of the 
property, as that the creditor may know his property and dis- 
tinguish it, and be able to assert successfully his right of prop- 
erty against any one who may invade it, and there must be 
also an actual offer of the property in payment, a mere readi- 
ness to deliver being insufficient." In a note to section 144 
of the Personal Property Law the editor of McKinney's Con- 
solidated Laws of New York (Bk. 40, p. 238) says: " By a long 
line of decisions in this State it has been held that, when the 
seller of personal property makes due tender of performance, 
but the buyer refuses to take the goods, the seller may retain 
the goods as belonging to the buyer and recover the contract 
price from him. This has been true at common law, regardless 
of the nature of the goods, whether they were readily resalable 
or not." To this are quoted a number of New York decisions; 
but the note further states: " The New York rule on this 
subject has been greatly modified by the Sales Act. Now 
only in cases where the goods ' cannot readily be resold for 
a reasonable price ' may the seller force the title on the buyer 
and recover the price of him. Formerly he could recover the 
price in all cases after due tender." I can conceive of no 
more positive act of appropriation than the setting aside of 
the property in such form as necessary to make a lawful tender 
of this property. The property must be set aside so that it 
is clearly distinguishable, and the purchaser must be able to 
identify the property so that he may take it and claim it as 
his own. If such act of appropriation as is necessary to a 
valid tender be sufficient to pass title, then the provisions of 
subdivision 3 of section 144 are unnecessary, as the purchase 



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224 Boiko & Co., Inc., v. Atlantic Woolen Miua, Inc. 

First Department, February, 1921. [Vol. 195. 

price can be obtained because title has passed. But the rule 
as there stated, that after such tender the purchase price can 
only be recovered where the property can be readily resold 
at a reasonable price, is a clear indication that such tender 
and the appropriation necessary therefor does not force title 
upon the purchaser, and the seller is remitted to his action 
for damages for non-acceptance of the goods under section 145 
of the Personal Property Law, and cannot .recover the purchase 
price under section 144 unless he can show that the goods were 
not readily salable at a reasonable price. It is unnecessary, 
therefore, to analyze the cases where the assent of the buyer 
to an appropriation by the seller is implied where the goods 
are to be selected from property of the same kind or to discuss 
those cases where the purchaser has made a contract for 
delivery to a carrier or at a specific place, and delivery has 
been there made, inasmuch as it cannot be here claimed that 
the property was to be selected from a mass of property of 
the same kind, nor that there has been any delivery made at 
any place specified in the contract, or any delivery whatever 
.made to the purchaser himself. 

Inasmuch, therefore, as the complaint states an action for 
goods sold and delivered, and as no delivery is proven, and as 
no property has passed to the purchaser under the Personal 
Property Law, and as there is no allegation in the complaint 
that the goods could not readily be resold for a reasonable 
price, the determination and judgment should be reversed 
and the complaint dismissed. If the seller would seek to 
recover under section 145 of the Personal Property Law, under 
which section alone, as I view it, could he, in any event, have 
a cause of action, he would be required to recast his pleading 
so as to base his right of recovery upon the purchaser's failure 
to accept the goods ordered. 

Dowling, J., concurs. 

Determination affirmed, with costs. 



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People ex kel. Wiesenthal v. Durons. 225 

App. Div.] Second Department, February, IBM. 



The People of the State of New York ex rel. Nathan 
Wiesenthal and David Wiesenthal, Respondents, v. 
James A. Dunne, a Justice of the Municipal Court of the 
City of New York, and James J. Baker, Appellants. 

Second Department, February 4, 1021. 

Prohibition — writ will not lie to restrain Justice of Municipal 
Court of City of New York from transferring pending case to 
another district. 

A writ of prohibition will not be granted restraining a justice of the Municipal 
Court of the City of New York from granting a pending motion to transfer 
a case to another Municipal Court district, such remedy not being a 
substitute for an appeal which would be adequate under the circumstances. 

Appeal by the defendants, James A. Dunne and another, 
from an order of the Supreme Court, made at the Kings Special 
Term and entered in the office of the clerk of the county of 
Kings on the 30th day of December, 1920, directing the 
issuance of an alternative writ of prohibition restraining the 
said Municipal Court justice from transferring the trial of an 
action pending in the Municipal Court of the City of New 
York, borough of Brooklyn, Fourth District, to the borough 
of Manhattan, Seventh District. 

Nathan Wiesenthal and David Wiesenthal, the relators, 
respondents, reside Within the fourth Municipal Court district 
in the borough of Brooklyn. They brought an action in the 
Municipal Court in that district against James J. Baker to 
recover ninety-five dollars rent of premises 306 West One 
Hundred and Forty-sixth street, borough of Manhattan, for 
the months of October and November, 1920. The defendant 
Baker answered demanding a jury trial and served notice of 
a motion for an order transferring the action to the seventh 
Municipal Court district, borough of Manhattan, which is the 
district in which are located the premises for which the rent is 
alleged to be due. The motion was returnable on November 
30, 1920, in the court in the fourth district, where Justice 
Dunne was presiding under regular assignment. On Novem- 
ber 27, 1920, the relators, the plaintiffs in the action, applied 
App. Dnr.— Vol. CXCV. 15 



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226 People ex rel. Wiesenthal v. Dukne. 

Second Department, February, 1981. [Vol. 195. 

for a writ of prohibition restraining the justice from granting 
the pending motion upon the grtfund that he had no power to 
transfer the trial of the action. The learned justice at Special 
Term granted the writ of prohibition, filing a memorandum 
opinion in which he says: " I think the writ of prohibition 
should be granted. Although the judgment may result in 
the removal of the tenant from the premises if he does not pay 
the rental which the court adjudges to be still reasonable, still 
the action is an action for rent, and not a summary proceeding. 
It is a personal action. Hence, it was properly brought in the 
district where plaintiff resides. Rule 35 of the Municipal 
Court Rules is in contravention of section 17 of the Municipal 
Court Code."* 

WiUiam B. CarsweU [John P. O'Brien, Corporation Counsel, 
and Joseph P. ReiUy with him on the brief], for the appellants. 

James E. Smyth, for the respondents. 

Kelly, J.: 

I think we are not called upon to decide the controversy 
between the parties as to the legality or propriety of trans- 
ferring the trial of the action. There appears to be no warrant 
for interference by writ of prohibition with the Municipal Court 
justice. The action was pending in the court in which he was 
presiding. The court had jurisdiction of the parties and the 
subject-matter. (People ex rel Higginsv. McAdam, 84 N. Y. 
287, 296.) If the motion to transfer the case should be denied 
we must assume that the justice will deny it. " The legal 
presumption is that every court will decide right, and conduct 
the proceedings before them fairly, impartially and correctly." 
(Wolfe v. Burke, 56 N. Y. 115, 119.) If the Municipal Court 
justice should make an erroneous decision the plaintiffs have 
the right to appeal. " The writ of prohibition is not favored 
by the courts. Necessity alone justifies it. Although author- 
ized by statute, it is not issued as a matter of right, but only 
in the exercise of sound judicial discretion when there is no 
other remedy. While it issues out of a superior court and runs 
to an inferior court or judge, its object is not the correction of 
errors nor relief from action already taken. In no sense is it 

* Laws of 1915, chap. 279, J 17.— [Rep. 

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Withvrkll v. Kelly. 227 

App. Dit.] Second Department, February, 19B1. 

a substitute for an appeal, as its sole province is to prevent 
the inferior tribunal from usurping a jurisdiction which it 
does not possess, although it runs against the exercise of 
unauthorized power in a proceeding of which the lower court 
has jurisdiction, as well as when the proceeding itself is insti- 
tuted without jurisdiction. The sole question to be tried is 
the power of the inferior court or magistrate to do the par- 
ticular act in question. * * * It is justified only by 
1 extreme necessity ' when the grievance cannot ' be redressed 
by ordinary proceedings at law, or in equity, or by appeal.' " 
(People ex rd. Livingston v. Wyatt, 186 N. Y. 383, 393, and 
cases cited; People ex rel. Newton v. Special Term, Part 1, 193 
App. Div. 463.) 

The order directing the issuance of the writ of prohibition 
should be reversed, with ten dollars costs and disbursements, 
and the motion denied, with ten dollars costs. 

Jenks, P. J., Rich, Putnam and Blackmar, JJ., concur. 

Order directing issuance of writ of prohibition reversed, with 
ten dollars costs and disbursements, and motion denied, with 
ten dollars costs. , d ^ tTI ^ ^ 



Rebecca Withebell, Respondent, v. Edward J. Kelly, 

Appellant. 

Second Department, February 25, 1921. 

Mortgages — foreclosure — equitable estoppel by representation 
that deficiency judgment would not be procured — appeal — Appel- 
late Division cannot review decision of foreign court as to its 
jurisdiction in action in which deficiency Judgment rendered. 

The plaintiff in a foreclosure action is estopped from entering a deficiency 
judgment against the mortgagor where it appears that in reliance on 
the assurances of the plaintiff that there would be no deficiency judgment 
taken against him the mortgagor, with just grounds, remained inert 
and did not attempt to secure himself or protect himself against a deficiency 
judgment, but in fact facilitated it by stipulating that the action of strict 
foreclosure, one wherein there could be no deficiency, should be modified 
into one of sale. 

As a rule, to constitute an equitable estoppel there must be a representation 
as to a fact past or present, but an estoppel will result where a statement 



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228 WlTHBRBLL V. KELLY. 

Second Department, February, 1921. [Vol. 195. 

relates to an intended abandonment of an existing right, and is made 
to influence others, and by which they have been induced to act. 

A positive statement by the plaintiff that a deficiency judgment would 
not be taken is not rendered the less positive by giving as a reason that 
the property would bring enough to cover the mortgage. 

A statement by the plaintiff that "you need not bother about that; we 
wont bother you with any judgment, made in response to a statement 
by the defendant that " I do not want you to get any judgment against 
me," is a positive statement and not the expression of an opinion. 

In an action on a deficiency judgment procured in a foreclosure action in 
Connecticut, evidence examined, and held, that the findings, that the 
defendant herein was not misled by and did not rely on statements made 
by the plaintiff herein and was not thrown off his guard nor hilled to sleep 
thereby, and that no representations or statements were made to the effect 
that no attempt would be made to hold him personally liable for a 
deficiency, are not supported by, but are against the evidence. 

It seems, that in this action on the deficiency judgment the Appellate Division 
cannot review the decision of the Connecticut court as to its jurisdiction 
over the defendant in the foreclosure action and as to its interpretation 
of the Connecticut statute. 

Appeal by the defendant, Edward J. Kelly, from a judgment 
of the Supreme Court in favor of the plaintiff, entered in the 
office of the clerk of the county of Kings on the 22d day of 
May, 1920, upon the decision of the court rendered after a 
trial at the Kings Special Term. 

Thomas J. Blake, for the appellant. 

William Mason Smith [John Howard Keim with him on the 
brief], for the respondent. 

Jenks, P. J. : 

The defendant, a resident of New York, owned a country 
house in Greenwich, Conn., bought in 1908 for $100,000, of 
which $40,000 was in cash and $60,000 was secured by mort- 
gage. In 1915 or 1916 he was in arrears for the taxes and 
the interest on the mortgage. In 1918 the mortgagee, this 
plaintiff, began foreclosure. In general, the practice in 
Connecticut is strict foreclosure. If, however, any party 
to the action moves therein for foreclosure by sale, the court 
decrees it and appoints both appraisers of the value of the 
realty in view of the sale, and a committee to conduct the 
sale. This was done in that foreclosure case. The plaintiff 
had not served this defendant, but on December 11, 1918, 



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WlTHBRELL V. KBLLT. 229 

App. Div.] Second Department, February, 1981. 

the defendant with others subscribed a stipulation made in 
that action. That stipulation consented to foreclosure by- 
sale on January 18, 2 p. m., at Greenwich, Conn., determined 
the amounts of the judgment debt at $63,671.56, of the 
attorneys' fees at $600, consented to the appointment of cer- 
tain persons as appraisers and as committee to sell, respec- 
tively. The appraisers valued the premises at $111,800. At 
the sale made on the day stipulated, the premises were sold 
to the mortgagee for $55,000 and a judgment for deficiency was 
entered against this defendant. This action on that judgment 
was tried by consent at Special Term. The court made 
findings of fact and conclusions of law to award judgment to 
the plaintiff and to dismiss on the merits the defenses of which 
one at least involved an equitable counterclaim. 

The defendant in this action pleads several defenses. The 
only issue litigated which I shall consider involves conversar 
tions between the plaintiff and the defendant in which the 
plaintiff was represented by Shedd, admittedly her agent for 
all purposes. 

The defendant testifies in part as follows: He had become 
in default in interest in 1915 or 1916. He did not recollect 
when he found out that foreclosure proceedings were con- 
templated. He had five or six conversations with Shedd. At 
one before January, 1919, Shedd said: " ' If you don't settle 
up and pay the back interest and the taxes on the property, 
we will sell it out/ I said, - 1 don't care if you sell it out or 
not. I am sick and tired of the property, and have not got 
money enough to maintain it, and don't want to bother with 
it, but if it is sold I want to be cleared off entirely.' Q. What 
did he say? A. Why, he said, 'You will have no trouble 
about that,' he says, ' the property will bring the money all 
right.' He says, ' Only we want our money, we want to get 
our pay, what is due us/ I said, ' Well, I don't care what 
you do, so long as there is no claim against me, no afterclaps 
about this thing. I want to be through with it when I am 
done with it, and I will consent to anything you want me to, 
so far as that is concerned/ Q. What did he say to that? A. 
He said, ' There will be no deficiency judgment against you; 
we won't bother you any, because we think we will get our 
money oat of it/ " On one occasion the defendant said to 



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230 WlTHERELL V. KELLY. 

Second Department, February, 1921. [VoL 196. 

Shedd: " If you sell this property I don't want any further — 
I am willing you should sell it, and I don't want to have any 
further business with it. I do not want you to get any judg- 
ment against me." Shedd said: " Oh, you need not bother 
about that; we won't bother you with any judgment*" This 
was " about July, 1918 or 1919." It could not have been in 
1919, because the defendant testified that at the time of that 
conversation the proceedings to foreclose the mortgage had 
not been taken. And finally he says that he had several 
conversations with Shedd between July, 1918, and the sale of 
the property, which was held in January, 1919. The defend- 
ant testified with reference to his conversations with Shedd: 
" Q. Did you believe what he said? A. Certainly; I had no 
reason not to believe it." The question as to whether or not 
the witness could have raised the money to meet the indebted- 
ness if he had believed there was to be a deficiency judgment 
against him, was objected to and the answer stricken out. 
" Q. You relied on what Mr. Shedd told you about there being 
no deficiency? A. Certainly; otherwise I would not have 
consented to sell. Q. And because of your reliance on what 
he told you about there being no deficiency, what did you 
do? A. I did not do anything, because I relied upon what he 
said to me." The defendant also testified that he relied on 
Shedd's statement that he did not want a deficiency judgment 
against the defendant. The question whether, if he thought 
that there would be a deficiency judgment against him, he 
could have done anything to save the property, was objected 
to as too speculative, the objection sustained and the answer 
stricken out. 

This testimony was not contradicted. Shedd was in court. 
He was called as a witness by the defendant, but did not testify 
as to the conversations. He was not called by the plaintiff. 
The defendant had offered no resistance to foreclosure. He 
had facilitated it. He had stipulated that the action of 
strict foreclosure, one wherein there could be no deficiency, 
should be modified into one of sale. There is nothing improb- 
able that Shedd, with the prospect of a sale of realty officially 
and conclusively assessed with a view of foreclosure sale at 
$111,800 to satisfy a debt of $63,000, should have felt it 
entirely safe to assure the defendant that there would be no 



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WlTHERELL V. ESLLT. 231 

App. Div.] Second Department, February, 1981. 

deficiency judgment against him. And, on the other hand, 
there is nothing under the circumstance unreasonable in the 
belief of the defendant of the truth of the assurance that 
plaintiff would not enter any deficiency judgment against him. 
The official determination of the value of the property for 
foreclosure sale was about $38,000 in excess of the debt, and 
Shedd had assured him that Shedd had received fifty to one 
hundred inquiries about the property and that the time of 
sale was " as good a time as any." 

• If the defendant, in reliance upon the assurance of Shedd 
that there would be no deficiency judgment against him, had 
just grounds to remain inert and at gaze without further 
securing himself or without protecting himself against a 
deficiency, it seems to me that the doctrine of equitable 
estoppel by representation applies, in that the plaintiff made 
statements that indicated her abandonment of an existing 
right of a plaintiff in a foreclosure by sale. 

As a rule, to constitute such an estoppel there must be 
representation as to a fact past or present, but there is a well- 
recognized exception that applies in this instance. After 
statement of the general rule, the court in Insurance Co. v. 
Mowry (96 U. 8. 547) says: " The only case in which a repre- 
sentation as to the future can be held to operate as an estoppel 
is where it relates to an intended abandonment of an existing 
right, and is made to influence others, and by which they have 
been induced to act. An estoppel cannot arise from a promise 
as to future action with respect to a right to be acquired upon 
an agreement not yet made. The doctrine of estoppel is 
applied with respect to representations of a party, to prevent 
their operating as a fraud upon one who has been led to rely 
upon them." (See, too, Dickerson v. Colgrove, 100 U. S. 
578, 580; Trustees, etc., v. Smith, 118 N. Y. 641; Faxtim v. 
Faxton, 28 Mich. 159, a leading case cited in Dickerson v. 
Colgrove, supra, and Trustees, etc., v. Smith, swpra; Harris v. 
Brooke, 21 Pick. 195; Johnson v. Blair, 132 Ala. 128; StayUm 
v. Graham, 139 Penn. St. 1-12; White v. Walker, 31 111. 422- 
427; 21 C. J. " Estoppel," 145(b); Bigelow Estop. [5th ed.] 
650; 2 Herman Estop. 903.) In Faxton v. Faxton (supra), a 
case essentially like the case at bar, the court per Campbell, J., 
say: " There is no rule more necessary to enforce good faith 



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232 WlTHBBBLL V. KELLY. 

Second Department, February, 1991. [Vol. 105. 

than that which compels a person to abstain from enforcing 
claims which he has induced others to suppose he would not 
rely on. The rule does not rest upon the assumption that he 
has obtained any personal gain or advantage, but on the fact 
that he has induced others to act in such a manner that they 
will be seriously prejudiced if he is allowed to fail in carrying 
out what he has encouraged them to expect." (See, too, the 
language of Swatne, J., for the court in Dickerson v. Colgrove 
eupra, 580.) 

The learned counsel for the respondent contends that Shedd's 
statements were mere expressions of opinion. Of the five 
or six conversations between defendant and Shedd the defend- 
ant seems to narrate the particular statements of two. The 
defendant testifies that Shedd said to him: " There will be no 
deficiency judgment against you; we won't bother you any, 
because we think we will get our money out of it." This 
contention of the appellant may be considered with reference 
to these statements. The statement " there will be no defi- 
ciency judgment against you," could be taken as the. declared 
purpose of the plaintiff. The statement " we won't bother 
you any," is likewise a positive assertion. " Because we 
think we will get our money out of it " may be taken as the 
reason " they " would not " bother " him. But the statement 
of the reason does not weaken the assertion. It would have 
been quite different if Shedd had said, " In my opinion there 
will be no deficiency judgment against you, because the value 
of the realty is ample to secure payment of our money; " or, 
" We will not bother you if the property sells so as to cover 
our debt; " or, " The value of the property is so great that you 
need not bother about any deficiency." However this may be, 
there is in another part of the testimony of the defendant, a 
statement of a conversation when the defendant said: " I do 
not want you to get any judgment against me," and Shedd 
answered, " you need not bother about that; we won't bother 
you with any judgment." This as testified to is the complete 
answer of Shedd, and is a positive, unqualified, unequivocal 
statement. There is nothing opinionative in such language. 

I do not overlook the testimony as to the stipulation which 
enabled the court to change strict foreclosure to foreclosure 
by sale. The defendant signed this stipulation gratuitously 



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WrraaflKLv. Kjelly. 233 



App. Dfr.] Sewnd Departs***, February* MIL 

and thereby, so far as he was concerned, made a deficiency 
possible. The testimony of the defendant and of Lockwood 
is contrary to the conclusion that defendant signed the 
stipulation at the request of Shedd — although defendant 
also testifies that he signed " another paper " at a tune when 
Shedd made representations to him; and at another part of 
his testimony the defendant says that he " would not have 
consented to sell " save that he relied upon Shedd's statement 
as to the deficiency. He testifies that he attended the sale 
because he had furniture in the premises, and that he knew 
nothing of any purpose of the plaintiff to hold him for the 
deficiency until the service of the summons in this action. 
He is somewhat corroborated as to the attitude of the plaintiff 
by the testimony of Williams. 

The doctrine of estoppel in pais is applicable in law as in 
equity. (Wxlliamsburgh Savings Bank v. Town of Solon, 136 
N. Y. 465, 474.) It is not essential that there should have 
existed in Shedd the intention to mislead. (Continental Nat. 
Bank v. Nat. Bank of Commonwealth, 50 N. Y. 583.) Equi- 
table estoppel need not rest upon consideration or agreement 
or legal obligation. (Rothschild v. Title Guarantee & Trust 
Co., 204 N. Y. 464.) 

I think that the findings that defendant was not misled by 
nor relied upon any statements of Shedd or of the plaintiff, 
and was not thrown off his guard nor lulled to sleep thereby, 
and that no representations or statements were made to the 
effect that no attempt would be made to hold him personally 
liable for a deficiency, are contrary to the evidence. 

I think that in this action we cannot review the decision of 
the Connecticut court as to its jurisdiction over the defend- 
ant in the foreclosure action perforce of his execution of the 
stipulation, although personally I am perplexed as to the 
jurisdiction. And the same is true as to the interpretation by 
the Connecticut* court of the Connecticut statute whereby 
any deficiency was determined in this foreclosure action by 
the Connecticut court, although, speaking for myself, I have 
grave doubt as to the correctness of that interpretation. 

I advise that the judgment be reversed and a new trial be 
granted, with costs to abide the event, on the ground that the 
findings of fact embodied in the fifteenth .finding, " that 



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234 Leonhabdt v. Oity or Yonkebs. 

Second Department, February, 1091. [VoL 1«J. 

defendant was not misted by and did not rely upon any state- 
ments or representations of said agent Shedd or of plaintiff; 
that defendant was not thrown off his guard nor lulled to sleep 
by any action or representation of the plaintiff or her agent; 
that no representations or statements were made to him by 
plaintiff or her agent to the effect that no attempt would be 
made to hold him personally liable/' are not supported by the 
evidence, but are against the evidence. 

, Mills, Rich, Blackmar and Jay cox, JJ., concur. 

Judgment reversed and new trial granted, with costs to 
abide the event, on the ground that the findings of fact 
embodied in the fifteenth finding, " that defendant was not 
misled by and did not rely upon any statements or representa- 
tions of said agent Shedd or of plaintiff; that defendant was 
not thrown off his guard nor lulled to sleep by any action or 
representation of the plaintiff or her agent; that no representa- 
tions or statements were made to him by plaintiff or her agent 
to the effect that no attempt would be made to hold him 
personally liable/' are not supported by the evidence, but 
are against the evidence. Settle order on notice. 



Mathias Leonhardt, Respondent, v. The City op Yonkers, 

Appellant. 

Second Department, February 26, 1021. 

Municipal corporations — sewers — exemption of cemetery from 
assessment for construction — assessment not extending to fuU 
depth of corner lots — omissions and defects not amounting to 
" total want of jurisdiction to levy and assess " within meaning 
of Second Class Cities Law, section 164 — half cost, of sewer less 
than two feet in diameter cannot be assessed against city of second 
class — failure of property owner to resort to procedure laid down 
by statute for determination of grievances. 

The statutory exemption of a cemetery in the city of Yonkers from assess- 
ment for the cost of a sewer is binding and controlling on the common 
council, and is beyond remedy in a suit by a taxpayer for the cancellation 
of assessments. , 



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Lronhardt v. City or Yonkebs. 235 

App. Div.J Second Department, February, 1981. 

Where a city has followed the procedure laid down by the Second Class 
Cities Law for the construction of a street sewer, filed the assessment roll 
with a publication by the common council of a notice thereof and an 
announcement of a meeting to consider objections presented, a lot owner, 
who omits to object to the assessment or to avail himself of the prescribed 
method of judicial review under the statute, cannot successfully maintain 
a suit in equity to set aside and cancel, as a cloud on his title, the assess- 
ments so made, on the grounds that the area of the assessment did not 
go back to the full depth of the corner lots situated on lateral streets 
already sewered; that there was an omission to have any cost estimate 
made as prescribed by section 120 of the Second Class Cities Law; that 
the published notice for bids did not specify the penalty of the bond which 
the bidder was to furnish as required by an ordinance of said city, and 
that the supplemental city charter (Laws of 1908, chap. 452, art. 6, § 18), 
requiring a statement of the cost of the sewer to be certified to the common 
council as the basis of an assessment, was not complied with, but instead 
the comptroller's certificate was sent directly to the assessors, for such 
defects and omissions do not amount to a ll total want of jurisdiction to 
levy and assess," within the meaning of section 164 of the Second Class 
Cities Law. 

An ordinance which was passed by the common council putting one-half 
the cost on the city was void, since the sewer was less than two feet in 
diameter and to impose one-half the cost on defendant, a city of the 
second class, would be contrary to section 100 of the Second Class Cities 
Law. 

Where the Legislature has provided a mode of publishing notice designating 
a time and place appointed to present grievances, objections and com- 
plaints, which will then be heard and considered, the Legislature may 
limit and restrict any subsequent resort to judicial proceedings, and the 
plaintiff after an omission for three years to act cannot now say that his 
property has been assessed without due process of law. 

Appeal by the defendant, The City of Yonkers, from a 
judgment of the Supreme Court in favor of the plaintiff, 
entered in the office of the clerk of the county of Westchester on 
the 24th day of May, 1920, upon the decision of the court 
rendered after a trial at the Westchester Special Term in an 
equity suit to set aside and cancel as a cloud on title certain 
assessments upon plaintiff's property. These are for a sewer 
built a distance of about 1,626 feet in Ashburton avenue, 
Yonkers. 

Plaintiffs premises (on the west side of the avenue) had a 
total assessment of $3,353.48. On the easterly side of the 
avenue opposite this new sewer is the cemetery property of 



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236 Lbonhardt v. City of Yonkbrs. 

Second Department, February, 1921. [Vol. 195. 

the Oakland Cemetery Association which is on a level above 
the street grade. Some of the grounds of opposition by the 
residents were that they had long had an adequate house 
sewer originally built at their expense, and that the lands 
most benefited by this new sewer were those of this cemetery, 
from which at times a surface wash descends into Aahburton 
avenue. 

The original ordinance for this sewer passed August 28, 1911, 
was followed by a contract under which the sewer was com- 
pleted in 1913. On February 9, 1914, when the assessment 
question was raised, plaintiff and nineteen others petitioned to 
the common council asking that the city at large bear one- 
half such expenses, which the common council inferred to the 
committee on taxes and assessments. The same persons later 
lodged a formal protest on the ground that such assessments 
were out of proportion to the benefits derived therefrom, 
which protest was duly referred to the committee on laws and 
ordinances. 

On December 14, 1914, the common council passed an 
ordinance amending the original 1911 ordinance. This amend- 
ment put half the expense of this sewer on the city at large. 

In the following June the comptroller returned a certificate 
of the items of sewer cost to the board of assessors, but informed 
them that the same could not be assessed against the city 
at large because the sewer was less than two feet in diameter. 
(Second Class Cities Law, § 100.) But this amending ordi- 
nance of December 14, 1914, placing half the cost on the city, 
was never repealed. It was ignored, and an assessment made 
up and filed in the office of the city clerk, followed by publi- 
cation -of notice that the common council would meet on June 
26, 1916, also that prior to that date written objections to such 
assessment might be filed. Apparently no objections were 
made, so that at a meeting of the common council on August 
28, 1916, the assessment was confirmed, and then sent to the 
city treasurer for collection. 

On publication of notice of sale of the lands for non-pay- 
ment of such assessments, plaintiff began this suit on January 
12, 1920, to enjoin such sale and to cancel the assessments as 
a cloud on his title. The learned court gave plaintiff judgment, 
from which this appeal is taken* 



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LSOHBAHDT V. ClTY OF YOKEBBS. 237 

App. Mr.] Saoond Department, February, l«t 

William A. Walsh, Corporaihn Counsel [John J. Broderick 
with him on the brief], for the appellant. 

flaZpA £ar/ Prime, Jr., for the respondent. 

Putnam, J. : 

These proceedings show defects and irregularities. The 
question is whether they may now be raised by this lot owner, 
after filing of the assessment roll, publication by the common 
council of notice thereof, with announcement of a meeting to 
consider objections presented, followed by plaintiff's omission 
to object to the assessment /"or to avail himself of the pre* 
scribed method of judicial review under the statute. (Second 
Class Cities Law, §§ 164, 165.) Did such defects and omissions 
amount to a " total want of jurisdiction to levy and assess " 
within section 164, or were they errors and irregularities, such 
as the Legislature might subject to the wholesome doctrine of 
waiver, if not objected to, and no court application made, 
within twenty days after confirmation? (Id. § 165.) 

Plaintiff's hardship from being assessed towards the whole 
cost of a sewer that did not materially benefit him, leaving the 
abutting cemetery lands free, is a consequence of a statutory 
exemption of this cemetery, which bound and controlled the 
common council. (Real Prop. Law, § 450;* Oakland Cemetery 
v. City of Yonkers, 63 App. Div. 448; affd., 182 N. Y. 564.) It 
is beyond remedy in this proceeding. (Goldsmith v. Prendergast 
Const. Co., 252 U. S. 12.) 

However, he has a further objection to lands not being 
included in the assessment area. The Ashburton avenue sewer 
crossed the junctions of Seymour and Mulberry streets and 
Croton Terrace — lateral streets already with drainage by 
local sewers. The entire west frontage along Ashburton 
avenue was assessed. But at these corners the area of the 
assessment did not go back to the depth of these lots, which 
were cut by diagonal lines so as to exclude parts, making a 
reduced area which already had drainage in the intersecting 
street sewers. This was within the legislative power of the 
common council, in delimiting the assessment area. It did 
not violate the principles by which it determined what property 

* Since amd. by Laws of 1918, chap. 404.— [Rap. 



238 Lbonhardt v. City of Yonkers. 

Second Department, February, 1981. [Vol. 195. 

was benefited. (Spencer v. Merchant, 100 N. Y. 585; People 
ex rel. Scott v. Pitt, 169 id. 521.) 

Among omissions charged is the failure to have any cost 
estimate under Second Class Cities Law, section 120,* which 
requires an " estimate of the whole cost " of a public improve* 
ment, " including all expenses incidental thereto and connected 
therewith," as a basis for any contract — a provision to aid 
in deciding to vote for the work and for the better scrutiny 
of the bids. This seems to have been omitted. But this was 
not jurisdictional in the sense that it was beyond the curative 
effect of confirmation by the common council. (2 Page & Jones 
Taxation by Assessment, § 932; Sorchan v. City of Brooklyn, 
62 N. Y. 339.) 

General Ordinance No. 2 of the city of Yonkers, adopted 
January 2, 1908, required (§9) the published notice for bids 
to specify the penalty of the bond which the bidder was to 
furnish. This was not done. Instead of a bond, the con- 
tractor had two obligors join with him in the contract. The 
ordinance was to let intending bidders know what security 
they must offer, and the absence of a notice of the required 
amount of the bond might narrow the field of bidders, and 
possibly advantage one who had inside information. However, 
it is nowhere urged or hinted that the contract was unfairly 
given out, or let on too favorable terms. Such informalities, 
therefore, did not destroy jurisdiction, nor work any. substan- 
tial injustice. (Conde v. City of Schenectady, 164 N. Y. 258.) 

Although the ordinance of December 14, 1914 (which pur- 
ported to put half this expense on the city), was never actually 
repealed, it was nevertheless void, because this sewer w&s less 
than two feet in diameter. (Second Class Cities Law, § 100.) 
Though unrepealed, it appears not to have misled the plaintiff. 
It was ultra vires. The general statute known as the Second 
Class Cities Law limited the powers of the common council 
of Yonkers in apportioning the cost of sewers under its supple- 
mental charter (Laws of 1908, chap. 452), as it restricted the 
authority of officials in other cities of that class throughout the 
State. 

* Since amd. by Laws of 1917, chap. 18, and Laws of 1920, chap. 
215.— [Rep. 



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Leonhardt v. City or Yonkbrs. 239 

App. Div.] Second Departments February, 1981. 

After such a sewer was built, a statement of its cost was 
required to be certified to the common council as a basis for 
any assessment. (Laws of 1908, chap. 452, art. 6, § 18.) 
Instead of an exact compliance, the comptroller's certificate 
went directly to the assessors. After the assessment had been 
completed, it was confirmed by the common council, which 
ratification I think remedied the omission in the first instance 
to submit the certificate to that body. 

Other objections are raised to certain expenses for engineer- 
ing and like outlays, which were included in this certificate. 
Apparently these charges come within the comprehensive 
provisions of the supplemental charter (Laws of 1008, chap. 452, 
art. 6, § 18).* 

Where the Legislature has provided a mode of published 
notice designating a time and palace appointed to present 
grievances, objections and complaints, which will then be 
heard and considered, the Legislature may restrict and limit 
any subsequent resort to judicial proceedings. {Matter of 
Common Council of Amsterdam, 126 N. Y. 158; Farnconib v. 
Denver, 252 U. S. 7.) Plaintiff's omission for over three years 
to act does not enable him now to say that his property has 
been assessed " without due process of law." (Moore v. City 
of Yonkers, 235 Fed. Rep. 485.) 

It follows, therefore, that plaintiff has not made out such a 
" total want of jurisdiction to levy and assess " as would 
entitle him to cancel assessments confirmed after due notice, 
and without objection. 

Hence, I advise that the judgment appealed from should be 
reversed, with costs of appeal, and judgment of dismissal 
entered, with new findings and conclusions of law, but without 
costs of the original suit. 

Jenks, P. J., Rich, Blackmar and Kelly, JJ., concur. 

Judgment, with findings, reversed, and judgment of dis- 
missal entered, with new findings and conclusions of law, with 
costs of appeal, but without costs of the original suit. Settle 
order on notice. 

* See, alio, Laws of 1016, chap. 85, aradg. aaid } 18.— [Rep. 

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240 Waohtel v. Mosler <St Go. 



First Department, February, 1991. [Vol. I9& 



Otto H. Wachtbl, Respondeat, v. A. R. Mosler & Com- 
pany, Appellant. 

First Department, February 11, 1921. 

Principal and agent — employment of salesman on commission 
within restricted territory — when sale not made within territory. 

A salesman's contract for compensation by way of commissions on sales 
made within specified territory does not entitle him to commissions 
where none of the goods which were the subject of the sales for which 
commissions are claimed were to be used within the specified territory, 
but in a foreign land and all negotiations were earned on outside the 
territory specified, although the formal contract was signed within the 
territory after half the goods were delivered, and the purchaser under 
its rules exercised the right of inspection through one of its agents during 
the manufacture. 

Smith, J., dissents. 

Appeal by the defendant, A. R. Mosler & Company, from 
a judgment of the Supreme Court in favor of the plaintiff, 
entered in the office of the clerk of the county of New York 
on the 18th day of February, 1920, upon the .verdict of a 
jury rendered by direction of the court, and also from an 
order entered in said clerk's office on the 19th day of February, 
1920, denying defendant's motion for a new trial made upon 
the minutes. 

Frederick W. Sperling, for the appellant- 

William Rand of counsel [Frank J. McMann with him on the 
brief; Jerome, Rand & Kresel, attorneys], for the respondent. 

Greenbaum, J.: 

Plaintiff was a salesman in the employ of the defendant 
which was a corporation engaged in the manufacture of spark 
plugs for automobiles. The only sales involved are two war 
orders for spark plugs received by the defendant in 1917 from 
the United States War Department for the United States 
expeditionary forces in France. It is undisputed that the 
sales were procured by the defendant and not by the plaintiff. 
It is also undisputed that the plaintiff would be entitled to 
the commission notwithstanding that the defendant procured 
the orders, provided these sales are to be deemed as made 



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Wachtbl v. Mosler & Co. 241 

App. Dlr.] First Department, February, 1931. 

within the territories mentioned in the written contract 
between the parties. 

The question is whether the sales in dispute were in plaintiff's 
territory, within the meaning of the contract. The agreement, 
so far as material, reads as follows: " We employ you as our 
salesman in New York City and in New Jersey as far as Trenton 
(not included); Westchester County as far as Peekskill, N. Y. 
(not included); Jersey coast as far and up to Atlantic City 
(not included); Long Island, Brooklyn, Staten Island, and 
such other territories where from time to time we may request 
you to go. Compensation shall be at the rate of 10% com* 
mission on all sales made by you or by us in your territory 
above mentioned, when shipped and paid for * * *. No 
manufacturing business, jobs, special brands or export orders 
shall apply in the above figures." 

The circumstances under which the orders were procured 
are not in dispute and were substantially as follows: On 
August 10, 1917, the defendant, whose factory is located in 
New York city, received a letter from the War Department, 
Quartermaster-General's office, Washington, D. C, requesting 
quotations on certain kinds of spark plugs, price " F. A. S.," 
New York, properly crated for export shipment, and asking 
that replies be addressed to Quartermaster-General, Washing- 
ton, D. C, attention of Capt. H. A. Hegeman, who was the 
regular army officer in charge of the department. 

Thereupon the defendant's sales manager, a Mr. Fisher, 
after phoning to Washington and making ail appointment, 
went to Washington with Mr. Mosler, defendant's vice- 
president. They prepared samples and figured out prices on 
a special schedule, and after a conference at the Quartermaster* 
General's office at Washington, defendant wrote a letter in 
the form of a quotation or bid addressed to the Quartermas- 
ter-General at Washington, dated August 14, 1917, and there- 
after submitted it in person in Washington to one Captain 
Barndollar, who had charge of this particular order and with 
whom they went over the requirements of the War Department 
for the spark plugs in question. Upon Captain Barndollar's 
request they amended the bid and prepared a new bid in the 
form of a letter dated August 16, 1917, also addressed to the 
App. Div.— Vol. CXCV. 16 



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242 Wachtel v. Mosler & Co. 

First Department, February, 1921. [VoL 195. 

Quartermaster-General at Washington and submitted it then 
and there to Captain Barndollar. Captain BarndoUar stated 
that the government wanted some extra gaskets and as a 
result of communications that passed between plaintiff and 
the officials in Washington an additional order of comparatively 
small amount was given. On August 22, 1917, Mr. Fisher, 
the defendant's sales manager, saw Captain Barndollar at 
Washington and went over in detail the different types of 
plugs required. Captain Barndollar selected the precise types 
he wanted, decided upon the quantities and fixed the prices. 
He thereupon dictated a letter dated August 22, 1917, which 
is defendant's exhibit " A " set forth in the printed case on 
appeal. 

It will be seen by reference to that letter that the New York 
quartermaster was directed to purchase from the defendant 
the goods specified in the quotation, in the quantities and at 
the prices stated in the letter and to execute an agreement 
as set forth therein, which thereafter was signed by the local 
quartermaster in New York pursuant to the exact details 
and in accordance with the direct and positive instructions 
of the Quartermaster-General's Department. 

It also appears that after the letter had been prepared at 
Washington to be sent to the New York quartermaster. 
Captain Barndollar stated to Mr. FiBher: " I guess this is 
the biggest order you ever pulled off. * * * Now go back 
to New York and get busy," and he handed Mr. Fisher one 
of the copies of the letter. He also told Mr. Fisher that the 
reason the letter was sent to the New York quartermaster 
was because his corps would have to supervise inspection at 
the defendant's factory which was in the district covered by 
that department. 

Thereafter one Captain Kelsey, who was connected with 
the quartermaster's corps in New York city, from time to 
time visited the factory and made inspections for the purpose 
of ascertaining whether the goods were being properly prepared. 
The goods were delivered in four separate installments, all 
directed free alongside the army transports at Hoboken, N. J., 
and boxed for export shipment marked, " Base Quartermaster, 
Expeditionary Force, France." 

The formal contract as matter of fact was executed in 



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Waohtbl v. MosuBft & Co. 243 

App. DiT.] First Department, February, 1991. 

New York in November, 1917, after about one-half of the 
merchandise had already been shipped. It also appears in 
evidence that Captain Kelsey stated that the New York 
quartermaster was only permitted on his own authority to 
make purchase of supplies for New York for the running of 
his office and that if an order exceeded $100 it was necessary 
to obtain authority to purchase from Washington. It was 
conceded on the trial that the two transactions in question 
were not " manufacturing business, jobs or special brands," 
as those words were employed in the contract between the 
parties, and that they were not " export business " within 
the meaning of the contract. The court directed a verdict in 
favor of the plaintiff upon the theory that the sales in question 
were made within the exclusive territories granted to the 
plaintiff under the contract. 

We cannot agree with the conclusions reached by the learned 
trial justice. The spark plugs which were the subject-matter 
of the government contracts were not intended for use in any 
of the territories named in the contract between the parties. 
It was expressly agreed in the government contract that the 
goods were to be delivered " free alongside the transports at 
Hoboken, New Jersey, " and boxed for export shipment, marked 
"Base Quartermaster, Expeditionary Force, France." Nor 
can there be any question that the sales of the spark plugs 
were made in Washington, D. C. The mere circumstance 
that under governmental regulations the formal signing of the 
contracts was performed by the New York quartermaster did 
not make the sale a New York sale. Every detail of the con- 
tracts had been agreed upon in Washington and the New York 
quartermaster was a mere instrumentality, carrying out the 
directions of the Quartermaster-General's Department- in 
Washington. 

The judgment and order must be reversed, with costs, and 
judgment is directed in favor of the defendant, with costs. 

Clarke, P. J., Dowling and Paoe, JJ., concur; Smith, J., 
dissents and votes for a new trial on the ground of exclusion 
of competent testimony. 

Judgment and order reversed, with costs, and judgment 
ordered in favor of defendant, with costs. 



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244 Gerard v. Empire Square Realty Co. 

Second Department, February, 1981. [Vol. 195. 



Daniel M. Gerard and Thomas J. Morris, Respondents, v. 
Empire Square Realty Company and Others, Appellants. 

Second Department, February 25, 1921. 

Corporations — power of majority of directors, acting separately 
and not collectively, to bind corporation to executory contracts- 
acts of all directors who own all stock bind corporation though 
they act separately and not collectively — measure of damages 
for breach of executory contract of employment — claim for money 
expended cannot be included — appeal — question not presented 
by record cannot be considered. 

In an action to recover for breach of an executory contract of employ- 
ment it appeared that the defendant corporations were owned by five 
members of a family and that all the stockholders were directors; 
that three of the directors acting individually signed a paper, as directors 
and stockholders, agreeing to hire the plaintiffs for one year at a stated 
salary and agreed to vote to confirm such appointment at the annual 
meeting of stockholders; that it was a disputed question on the trial 
whether the other two directors and stockholders agreed to or ratified 
the paper so signed. The trial court directed a verdict for the plaintiffs 
and denied defendants' request to go to the jury on the issues whether 
a contract was made, whether the plaintiffs had performed, and upon 
the amount of damages. 

Held, that while the president of a corporation, acting as such, has the 
power, prima facie, to bind it by any contract that tho board of directors 
could authorize or ratify, still an employment of the plaintiffs by the 
president of the defendant companies cannot be spelled out of a writing 
which in expressed terms is a consent as a director and stockholder to 
their employment, with a promise to vote to confirm the same at the 
next stockholders' meeting. 

A majority of the directors acting separately and not collectively at a 
meeting cannot bind the corporation by an executory contract, and, 
therefore, the judgment on a directed verdict cannot be sustained. 

The complaint should not be dismissed, however, but a new trial should 
be granted, for where the directors of a corporation own all the capital 
stock and are members of the same family but so at variance that directors' 
and stockholders' meetings are not held, their action, concurred in by all, 
although separately and not as a body, binds the corporation. 

The measure of damages for a breach of an executory contract of employ- 
ment is not the full amount agreed to be paid for the unrendered services, 
but is compensation resulting from the breach, and that question should 
have been submitted to the jury. 

It was error to include in the directed verdiot the amount of the claim by 
the plaintiffs for money expended by them for the use of the defendants, 
since that was a cause of action distinct from that set forth in the complaint. 



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Gerard v. Empire Square Realty Co. 245 

App. Div.] Second Department, February, 1991. 

The elaim of the plaintiffs that the judgment Bhould be affirmed because 
the defease was not authorised by the corporations cannot be considered, 

' for upon the record the defendant corporations are regularly before the 
court and the only question presented ia the validity of the judgment 
entered on the directed verdict. 

Appeal by the defendants, Empire Square Realty Company 
and others, from a judgment of the Supreme Court in favor of 
the plaintiffs, entered in the office of the clerk of the county 
of Suffolk on the 11th day of March, 1920, and also from an 
order entered in said clerk's office on the 22d day of March, 
1930, denying defendants' motion to set aside the verdiet and 
for a new trial made upon the minutes. 

The action is to recover damages for breach of a contract 
of employment. The case was brought to trial before the 
court and a jury, and at the end of the trial the court, over the 
objection and exception of defendants' counsel, directed a 
verdict for the plaintiffs for $4,675 with interest, upon which 
a judgment of $4,901.44, damages and costs, was entered! 
from which the defendants appeal. 

The defendants are four corporations each owning a parcel 
of real property in the city of New York, improved for renting 
purposes. The entire capital stock of the four corporations is 
owned by Charles E. Miller, John L. Miller, Jr., Warren A. 
Miller, George H. Miller (brothers), and Emma J. M. Earp, a 
sister. These five also constituted the board of directors of 
each corporation. The officers of the corporations were also 
the same. Charles E. Miller was president; Mrs. Earp was 
vice-president; John L. Miller, Jr., was secretary and treasurer 
and also general manager. There were dissensions in the 
family, which interfered with the business of the companies and 
led to the omission of stockholders' and directors' meetings. 
On February 19, 1919, John L. Miller, Jr., under authority 
expressly conferred by the boards of directors, appointed 
plaintiff Gerard, by a written instrument, as aid in managing 
the business of leasing and collecting the rents of the premises 
owned by the four corporations. The employment specified 
no time for continuance, nor compensation, which, however, 
was arranged at $200 a month, being the amount specially 
allowed to Miller as general manager. The appointment 
having been made, John L. Miller, Jr., went on a trip to 



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246 Gerard v. Empire Square Realty Co. 

Second Department, February 1WL [Vol. 195. 

the south, and Gerard, with the assistance of plaintiff 
Morris, managed the business of the four corporations in his 
absence. 

On the 23d of March, 1919, George H. Miller executed and 
delivered to the plaintiffs a paper which began: "As director 
and stockholder of the Empire Square Realty Company, 
Rellim Construction Company, Riverdale Construction Com- 
pany, and Albertina Realty Co., I hereby agree to the appoint- 
ment of Daniel M. Gerard and Thomas J. Morris, as agents, 
to manage the properties owned by the said companies for 
the ensuing year, commencing April 1st, 1919, at a salary of 
Six Thousand ($6000.00) Dollars per year, the same to be 
paid in monthly instalments on the first day of each and every 
month as it becomes due." Then follows a detailed descrip- 
tion of the plaintiffs' duties under said employment, and the 
document ends with the words: "At the annual meeting of 
the several companies, I agree to vote to confirm such appoint- 
ment on the terms above mentioned." On March 24, 1919, 
an exact duplicate of the paper was signed by W. A. Miller. 
A few days thereafter Charles E. Miller, the president of the 
company, also executed a duplicate, except that he appended 
these words: "And further to adjust the questions arising 
between the stockholders as to their interests therein and 
settle matters that may come up including the division of 
interest in the respective companies." 

The plaintiff testified that John L. Miller, Jr., agreed orally 
to this employment, and contends that Mrs. Earp agreed to it 
by necessary implication from her conduct, and that the 
corporations ratified it by accepting the services of the plain- 
tiffs until July first and paying therefor at the rate of $500 
per month. John L. Miller, Jr., denied that he knew of or 
agreed to such employment, and testified that he paid plaintiff 
Gerard without knowledge thereof, in the belief that he was 
paying him as assistant to himself under the original appoint- 
ment. Mrs. Earp denied that she ever knew of or accepted 
the alleged employment. The plaintiffs claim that they were 
discharged from the employment on July first by John L. 
Miller, Jr. John L. Miller, Jr., testified that the plaintiffs 
left voluntarily. The court directed a verdict for the full 
amount of the salary for the year* 



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Oeeabd v. Empire Square Realty Co. 247 

App. IMt.] Second Department, February, 1921. 

Middleion S. Borland [Percy F. Griffin with him on the 
brief], for the appellants. 

Frederick W. Sparks, for the respondents. 

BliACKMAB, J.: 

At the close of the evidence the defendants moved to dismiss 
the complaint, and the plaintiffs moved for direction of a 
verdict. The court announced the direction of a verdict for 
the plaintiffs, whereupon the defendants asked to go to the jury 
on the issues whether a contract was made, whether the plain* 
tiffs had performed, and upon the amount of damages. The 
court entertained the motion and denied it, and the defendants 
duly excepted to the direction of the verdict. This exception 
presents the question of law whether there were such questions 
of fact in the case as entitled the defendants to go to the 
jury. (Brown Paint Co. v. Reinhardt, 210 N. Y. 162.) 

It is written that the president of a business corporation 
has the power, prima facie, to bind it by any contract that the 
board of directors could authorize or ratify. (Oakes v. C. W. 
Co., 143 N. Y. 430; Patterson v. Robinson, 116 id. 193; Davies 
v. Harvey Steel Co., 6 App. Div. 186.) But the president of 
the four corporations did not, by the written instrument set 
forth in the statement of facts, employ the plaintiffs by virtue 
of his office as president. It is apparent that an employment 
by the president of the companies cannot be spelled out of a 
writing which in expressed terms is a consent as a director and 
stockholder to their employment, with a promise to vote to 
confirm the same at the next stockholders' meeting. 

The paper was signed by three of the directors out of a full 
board of five. It is a disputed question of fact whether it 
was ratified or agreed to by the other two. The judgment 
cannot be sustained on a directed verdict unless a majority of 
the board of directors, acting separately and not collectively 
at a meeting, can bind the corporation by an executory con- 
tract. That no such power exists in a majority of the board 
is an established rule of universal application. The judgment 
must, therefore, be reversed. The serious question is whether 
the plaintiffs presented evidence that uncontradicted would 
justify the finding that there was a contract of employment 
binding on the corporation. If they did not, this court should 



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248 Gbrabd v. Empire Squabe Reamt Oo. 

Second Department, February, 1001. [Vol 1M, 

dismiss the complaint. If they did, a new trial should be 
granted. The plaintiffs are not suing for wages for service per- 
formed, but for damages for breach of the contract in discharg- 
ing them. To establish this cause of action they must prove 
a contract of employment for a year, made by the defendants 
through the action of their boards of directors; for this is the 
contract alleged in the complaint and in the bill of particulars. 

Three of the directors have consented in writing, and there 
is evidence tending to show that the other two also consented. 
But the directors acted separately and not collectively as a 
body. There is no doubt that the general rule is that directors 
must act collectively. In People's Bank v. Si. Anthony's 
R. C. Church (109 N. Y. 512), Judge Andrews, writing for the 
court, said: " The trustees of a corporation have no separate 
or individual authority to bind the corporation, and this 
although the majority or the whole number, acting singly and 
not collectively as a board, should assent to the particular 
transaction." There are many other authorities to the same 
effect. (Constant v. Rector, Wardens & Vestry of St. Albans 
Church, 4 Daly, 305; Catholic F. M. Society v. Oussani, 215 
N. Y. 1; Baldwin v. Canfield, 26 Minn. 43; Untied Brethren 
Church of New London v. Vandusen, 37 Wis. 54.) The principle 
is recognized in Young v. U. S. Mortgage & Trust Co. (214 
N. Y. 279), for the court, having found that the executive 
committee acted as a body, decided only that a formal minute 
or record of the act was not necessary. 

I may, therefore, start out with the rule, generally appli- 
cable, that directors, acting separately and not collectively as 
a board, cannot bind the corporation. I will stop a moment 
to say that there is no room for the application of the doctrine 
of estoppel; for the plaintiffs are not suing for the value of 
property or service acquired by the corporation through the 
irregular act of the directors, but for breach of an executory 
contract only. 

The general rule seems ±o rest upon two reasons: First, that 
collective action is necessary in order that the act may be 
deliberately adopted after an opportunity for discussion and 
an interchange of views; and, second, that the directors are, 
for the purpose of managing the affairs of the corporation, 
the agents of the stockholders and are given no power to act 



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Gerard v. Empire Square Realty Co. 249 

App. Div.] Second Department, February, 1921. 

otherwise than as a board. Now, if all the directors are of one 
mind, the reason first stated is much weakened if not destroyed, 
for if all are agreed discussion is futile; and if the directors 
own all the corporate stock the second reason also disappears, 
for they are both principals and agents end their unanimous 
acts ae directors carry their consent thereto as stockholders. 

I think that under the circumstances of the case we are 
considering, where the directors own all the capital stock of the 
corporations, where they are members of the same family 
but so at variance that directors' and stockholders' meetings 
are not held, their action, concurred in by all, although sepa- 
rately and not as a body, binds the corporation. "We must 
recognize the fact that to a greater and greater degree all 
business, great and small, is being brought under the manage- 
ment of corporations instead of partnerships; that they are, 
in perhaps the majority of instances, conducted by officers 
and directors little informed in the law of 'corporations, who 
often act informally, sometimes without meetings or even 
by-laws. To hold that in all instances technical conformity 
to the requirements of the law of corporations is a condition 
to a valid action by the directors, would be to lay down a 
rule of law which could be used as a trap for the unwary who 
deal with corporations, and to permit corporations sometimes 
to escape liability to which an individual in the same circum- 
stances would be subjected. I cite some authorities resting 
upon the principle that I have suggested. (Bank of Middle- 
town v. Rutland & Washington R. R. Co., 1 Shaw [Vt.], 159; 
Matter of Great Northern Salt & Chemical Works, Ex parte 
Kennedy, 44 L. R. Ch. Div. 472; Jordan & Co. v. Collins & 
Co., 107 Ala. 572; Burden v. Burden, 159 N. Y. 287; Hall v. 
Herter Brothers, 83 Hun, 19; Sheridan Elec. Light Co. v. Chatham 
Nat. Bank, 52 id. 575.) I think, therefore, that if all the 
directors in the four corporations, being also holders of all the 
capital stock, agreed to the employment of the plaintiffs, 
their acts bind the corporations and a contract of employment 
so made is valid. 

There are two other questions of fact that should have been 
submitted to the jury. One is whether the plaintiffs were 
discharged or whether they voluntarily agreed to relinquish 
the employment, and the other is the question of damages. 



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250 North Am. Fisheries & Oou> Storage, Ltd., v. Green. 

First Department, February, 1921. [Vol. 195. 

The measure of damages is compensation. If the contract 
is established, the plaintiffs were entitled to $500 a month 
for services rendered. It cannot as matter of law be said 
that the true measure of compensation is to award to them the 
full amount of their salary where the services that were the 
consideration therefor were not performed. The question 
of the amount of damages should have been left to the jury to 
determine the actual loss to the plaintiffs under all the cir- 
cumstances which may be developed on the new trial. 

It was error also to include in the directed verdict the amount 
of the claim of $175 for money expended by the plaintiffs for 
tjhe use of the defendants. This is a cause of action distinct 
from that set forth in the complaint, and it was not competent 
for the court, against the objection and exception of the defend- 
ants, to include the amount of this unalleged cause of action 
in the award of damages. 

The claim of the plaintiffs that the judgment should be 
affirmed because the defense was not authorized by the cor- 
porations, cannot be considered on this appeal. Upon the 
record before us the defendant corporations are regularly 
before the court, appearing by an attorney. Nothing is 
presented on this appeal but the validity of the judgment 
rendered after due trial upon the issues raised by the pleadings. 

The judgment and order should be reversed and a new trial 
granted, with costs to abide the event. 

Jenks, P. J., Rich, Putnam and Jaycox, JJ., concur. 

Judgment and order reversed and new trial granted, with 
costs to abide the event. 



North American Fisheries and Cold Storage, I/td., 
Respondent, v. Loins H. Green, Appellant. 

First Department, February 4, 1921. 

Payment — application of payment — application on account of 
goods which had not been delivered at time of payment and not 
on account of note then due. 

In an action on a promissory note given for a balance due on the purchase 
price of fish in which the only question litigated was whether a payment 
made to the defendant was rightfully applied to the account of a trans- 



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North Ah. Fisheries & Cold Storage, Ltd., v. Green. 251 

App. Div.] First Department, February, 1921. 

action wholly unrelated to the note, it appeared that the transaction to 
which the payment was applied involved the purchase of fish on which 
a deposit had been made and that said fish were not delivered till several 
days after the payment in question. 

Held, on all the evidence, that for manifest error of the trial court in 
instructing: the jury that there was no dispute about an important issue 
of fact and in failing to correct the error when its attention was particu- 
larly directed to it by the appellant's counsel, the judgment should be 
reversed and a new trial ordered. 

Dowling, J., dissents. 

Appeal by the defendant, Louis H. Green, from a judgment 
of the Supreme Court in favor of the plaintiff, entered in the 
office of the clerk of the county of New York on the 3d day of 
June, 1920, upon the verdict of a jury, and also from an order 
entered in said clerk's office on the same day denying defend- 
ant's motion for a new trial made upon the minutes. 

E. A. Sherpick of counsel [L. L Shelley with him on the brief; 
Medina & Sherpick, attorneys], for the appellant. 

Nathaniel Phillips, of counsel [Samuel Walter Levine with 
him on the brief], for the respondent. 

Greenbaum, J.: 

Plaintiff is a Canadian corporation engaged in the freezing 
of fish which it markets in wholesale quantities. Its main 
plant is located in Nova Scotia. It is undisputed that on 
July 23, 1919, defendant purchased from the plaintiff 104,000 
pounds of mackerel at the agreed price of $14,800 and delivered 
to the plaintiff a draft of $8,000 drawn by the defendant in 
part payment of the purchase price and a promissory note for 
the balance of $6,800, dated July 23, 1919, payable three 
months after its date. 

It is upon this note that the action was brought. The 
eight-thousand-dollar draft was paid in due course. The only 
question litigated was whether defendant paid the sum of 
$4,000 on account of this note for $6,800. It is admitted by 
the plaintiff that it received from the defendant $4,000 on 
January 8, 1920, which it applied to the account of a trans- 
action wholly unrelated to the note. That transaction was 
a contract made August 29/ 1919, for the purchase by the 
defendant from the plaintiff of 159,000 pounds of pollock at 
the price of $6,360 to be delivered at Boston. 



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252 North Ah. Fisheries & Cold Storage, Ltd., v. Gbbbn. 

First Department, February, IBM. [Vol. 195. 

' * r . — — — ■ - « 

It is undisputed that such a contract was made; that on 
September 18, 1919, the sum of $1,000 was paid thereon as a 
deposit to the plaintiff; that the pollock was not to be delivered 
until some months after the date of the contract and that in 
fact it was not delivered until January 12 or 13, 1920, four or 
five days after January eighth, the date of the $4,000 payment. 

The narrow question is, was the sum of $4,000 paid by 
defendant to the plaintiff on account of the pollock 
transaction? 

The note in suit was due on October 23, 1919, so that on 
January 8, 1920, it was long overdue. The testimony with 
regard to the terms of the sale of the pollock was conflicting. 
Plaintiff's testimony was that the goods were sold for cash, 
meaning thereby that the fish was to be paid for in advance of 
delivery; that the $1,000 was a deposit on account of the 
sale and that it was expected that the balance would be paid 
within a reasonable time thereafter, which on such a contract 
would be within two or three months after the contract had 
been made but before the delivery of the goods. 

The plaintiff when it received the $4,000 credited that 
amount on account of the pollock transaction. If nothing 
had been said as to the account upon which the payment was 
made, plaintiff had a right to apply it to which ever account 
it saw fit provided the balance of the contract price of the 
pollock was then due. (Bank of CcMfcmia v. Webb, 94 N. Y. 
467, 471.) 

A reading of the testimony shows that there was a question 
of fact presented to the jury as to whether or not the plaintiff 
was justified in applying the $4,000 to the pollock sale. 

The appellant, however, claims that there were errors con- 
mitted upon the trial which would justify a reversal of the 
judgment. The first of these relates to the refusal of the 
trial court to grant an application for an adjournment of 
the trial for a few days in order to enable defendant to pro- 
duce a witness named Harnish, whose testimony was material 
on the issues that were tried. We are inclined to think that 
sufficient reasons were presented to justify the granting of a 
brief adjournment of the trial,' but nevertheless we are of 
opinion that the court did not exceed its discretion and that 
the verdict should not be disturbed on that account. 



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North Am. Fisheries & Cold Storage, Ltd., v. Green. 253 

App. Div.] First Department, February, 1921. 

The next alleged error upon which defendant relies is that 
the court erred in refusing to charge the jury that if there was 
nothing due on the pollock sale at the time of the payment of 
$4,000 they must find that the payment was made on account 
of the mackerel, that is to say, on account of the note in suit. 
The court refused to charge in the language as requested, but 
stated that it would " charge that if the jury determine that 
there was no payment due on the pollock at the time of the 
payment of the $4,000, that that is a circumstance that the 
jury may consider in connection with all the other circum- 
stances of the case as to how the payment was made." 

There was testimony given in behalf of plaintiff that would 
have warranted the jury in finding that it was understood 
that the payment of $4,000 was to be applied to the pollock 
account. Under these circumstances the charge of the learned 
trial justice was unassailable. . 

It seems to us, however, that the court committed a serious 
error in charging the jury that " the pollock account was an 
open account, there is no dispute about that." As matter of 
fact there was a dispute about that. Defendant's counsel at 
the close of the judge's charge said: " I desire to take excep- 
tion to your charge that there is no dispute as to the pollock 
account being an open account; we dispute it strongly. The 
Court: Your client testified that that account was open. 
Mr. Sherpick: I take exception to your Honor's ruling. 
The Court: All right, sir. ,, The defendant testified that 
the pollock was sold upon the agreement that the balance of 
the purchase price was to be paid after the fish was delivered 
and that there was nothing due on that sale on January 
eighth. There was thus a disputed question of a material 
fact which should have been submitted to the jury and when 
the court's -attention was called to the statement in the charge 
that there was no dispute as to the pollock account being an 
" open account " it should have corrected the error. 

The respondent in its brief attempts to justify the state- 
ment of the court that it was an open account upon the ground 
that legally the word " open " has been defined to mean an 
account " that is not closed." It seems to us, however, that 
we must consider the words " open account " as the jury 
would have naturally understood the meaning of those words 



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254 Plumb v. Richmond Light & Railroad Co. 

Second Department, February, 1921. [Vol. 195. 

and as the court evidently meant them to be understood. 
The jury was justified in assuming that the words " open 
account " meant that it was an account that was due. We 
are constrained, therefore, to reverse the judgment. 

The judgment and order should be reversed and a new trial 
ordered, with costs to appellant to abide the event. 

Smith, J., concurs; Clarke, P. J., and Page, J., concur in 
result; Dowling, J., dissents. 

Judgment and order reversed and new trial ordered, with 
costs to appellant to abide event. 



Martin P. Plumb, Respondent, v. Richmond Light and 
Railroad Company, Appellant, Impleaded with Joseph J. 
Phillips, Defendant. 

Second Department, February 25, 1921. 

Street railways — action by passenger to recover for injuries received 
when struck by motor truck colliding with troUey car — doctrine 
: of res ipsa loquitur not applicable — charge as to presumption 
' of negligence on part of railroad company. 

The doctrine of res ipsa loquitur can never be applied with accuracy unless 

all the agencies that are factors in the accident are under the control 

of the defendant and the accident is one which would not have happened 

in the ordinary course of events providing reasonable care had been 

exercised by the defendant. 

Hence, in an action against a railroad company and the owner of a motor 

t truck to recover for injuries as the result of a collision between a trolley 

car and the motor truck the doctrine of res ipsa loquitur is not applicable, 

because although the circumstances were such as to permit the inference 

of negligence, yet the negligence may have been that of the driver of the 

motor truck and not of the operating employee of the railroad company. 

It was not error, however, for the court to charge, in effect, that under the 

circumstances of the case there was on the part of the carrier a presumption 

of negligence that would justify a finding of negligence, in the absence of 

an explanation of the cause of the accident consistent with the exercise of 

ordinary care. 

Said presumption rests primarily upon the duty which a common carrier 

, oweB to its passengers, in connection with circumstances showing that 

1 the injury might have been occasioned by a failure in the performance 

. of such duty. 



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Plumb v. Richmond Light & Railroad Co. 255 

App. Diy.] Second Department, February, 188L 

Reakgument of an appeal by the defendant, Richmond 
Light and Railroad Company, from a judgment of the Supreme 
Court in favor of the plaintiff, entered in the office of the clerk 
of the county of Kings on the 30th day of April, 1920, upon 
the verdict of a jury for $15,000, and also from an order entered 
in said clerk's office on the 3d day of May, 1920, denying 
defendant's motion for a new trial madfe upon the minutes* 
(See 194 App. Div. 972.) 

Guy 0. Walser [Bertram 0. Eadie with him on the brief], for 
the appellant. 

Francis X. Carmody [Morrison T. Hankine with him on the 
brief], for the respondent. 

Blackmar, J. : 

At the time of the accident which resulted in injury to the 
plaintiff he was riding on the left-hand running board of an 
electric street car operated by defendant railroad company. 
Both the interior of the car, which was an open one, and the 
right-hand running board were so completely occupied that 
the plaintiff was unable to get upon any part of the car except 
the left-hand running board. While in this situation the 
defendant company accepted his fare and permitted him to 
continue to ride there. At the time of the accident, as the 
car was proceeding slowly, the plaintiff, looking ahead, saw a 
motor truck about fifty feet away, coming towards it. The 
motor truck swung around a vehicle in front of it, and in so 
doing approached so nearly the line on which the car was 
traveling that the plaintiff tried to escape possible contact by 
climbing inside the car; but, failing in this, he was struck by 
the motor truck or by a skid protruding from it and severely 
injured. As the truck was approaching there was no change 
in the speed of the trolley car and it was in motion at the time 
the plaintiff was struck. 

The jury found a verdict against both defendants — the 
railroad company and the owner of the motor truck; but the 
railroad company alone appealed. In the course of his careful 
charge to the jury the learned justice who presided at the trial 
used the following language: " The management and control 
of the transportation of the passenger is wholly confided to the 



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256 Plumb v. Richmond Light Ac Railroad Co. 

Second Department, February, 1021. [Vol. 195. 

employees operating the car, and the passenger cannot be 
expected to account for a collision if one takes place. When 
such a collision takes place, there arises, as a rule of evidence, 
a presumption of negligence upon the part of the carrier, 
winch calls upon it for an explanation. I do not mean, in 
making this statement, that this rule of evidence shifts the 
burden of proof from the shoulders of the plaintiff onto the 
shoulders of the defendant, but only that the company, from 
the fact of the collision, if you find that there was a collision, is 
called upon to make an explanation; and then it is for you to 
determine, on the whole case, on all the evidence, whether 
there is a preponderance of the evidence in favor of the plain- 
tiff's contention that there was negligence upon the part of 
the defendant." To this the counsel for the railroad company 
excepted. 

This instruction of the court, not being a general statement 
of the law, but a definite rule, given for the guidance of the 
jury in this particular case, seemed to this court, in considering 
the matter after the argument, to be open to so much question 
that a reargument was ordered upon this point. Counsel for 
both parties, assuming that the court had charged the jury 
that the doctrine of res ipsa loquitur applied to this case, 
have, both in their briefs and on the oral argument, carefully 
and exhaustively presented to the court a review of the author- 
ities and arguments pro and con upon the question of the 
correctness of the charge in view of the particular facts devel- 
oped by the evidence upon the trial. 

My conception of the doctrine of res ipsa loquitur is that it 
can never be applied with accuracy unless all the agencies 
that are factors in the accident are under the control of the 
defendant and the accident is one which would not have hap- 
pened in the ordinary course of events providing reasonable 
care had been exercised by the defendant. {Griff en v. Manice, 
166 N. Y. 188, 194.) The opinion written by the learned 
judge in the case last cited is, I think, adopted by the pro- 
fession generally as being the final expression of that court of 
the elements necessary to the application of the doctrine of 
res ipsa loquitur. It is there stated to rest on the doctrine 
of circumstantial evidence, and I have already expressed my 
opinion that the doctrine is one that permits an inference of 



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Plumb v. Richmond Light & Railroad Co. 257 

App. Div.] Second Department, February, 1991. 

negligence from circumstances which do not necessarily exclude 
any other hypothesis, leaving it for the defendant, by explanar 
tion, to exclude such hypothesis. (Maslenka v. Brady, 188 
App. Div. 663.) If all the agencies are not in the control 
of the defendant, although the circumstances shown in the 
evidence are such as to permit the inference of negligence the 
doctrine is not applicable, because it may be the negligence 
of a third party which caused the accident, and not of the 
defendant. (Wolf v. American Tract Society, 164 N. Y. 30; 
Hardie v. Boland Co., 205 id. 336.) In such a case the party 
responsible is not identified. I think, therefore, that the 
doctrine of ree ipsa loquitur is not logically applicable to the 
case at bar, because although the circumstances were such as 
to permit the inference of negligence, yet the negligence may 
have been that of the driver of the motor truck and not of the 
operating employee of the railroad company. 

But the learned trial justice did not refer to the doctrine of 
res ipsa loquitur in terms. He charged the jury that under the 
circumstances of the case, there was on the part of the carrier 
a presumption of negligence that would justify a finding, in 
the absence of an explanation of the cause of the accident 
consistent with the exercise of ordinary care. The reason for 
the assertion of this rule rests primarily upon the relation of 
a common carrier to a passenger. In Loudoun v. Eighth Ave, 
R. R. Co. (162 N. Y. 380) the court applied to a street car 
company the doctrine of presumption of negligence from a 
collision with another street car at the intersection of tracks. 
Cttllen, J., writing for the court, said: " The management and 
control of the transportation of the passenger is wholly con- 
fided to the employees operating the car, and the former cannot 
be expected to be on the watch either as to its management or 
that of other vehicles, or if a collision takes place, be able to 
account for its occurrence. Therefore, when such a collision 
occurs there arises a presumption of negligence on the part of 
the carrier, which calls upon it for explanation.' 1 The close 
resemblance of the charge of the learned trial justice to this 
deliberately formulated statement 6i the law by the Court of 
Appeals is easily seen; and as the doctrine of the Loudoun 
case stands unchallenged by the Court of Appeals, the trial 
App. Div.— Vol. CXCV. 17 



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258 Plumb v. Richmond Light & Railroad Co. 

Second Department, February, 1921. [Vol. 195. 

justice was justified in his charge, nor are the circumstances of 
the two cases so different as to call for the application of a 
different rule. 

In the Loudoun case the tracks of the Third Avenue Railroad 
Company and the Eighth Avenue Railroad Company inter- 
sected at a street crossing. The plaintiff was a passenger in a 
car of the Eighth Avenue Railroad Company. That ear, 
while being moved over the place of intersection, was struck 
by a car of the Third Avenue Railroad Company. The court 
decided that while there was no presumption of negligence to 
be drawn against the Third Avenue Railroad Company, whose 
car struck that'in which the-plaintiff was riding, yet, on account 
of the relation of the carrier to the passenger and " the very 
high degree of care" required by such relationship, the pre- 
sumption of negligence on the part of the carrier arose from 
the happening of the accident under those circumstances. 
The only distinction between that case and t^e one at bar is 
that in the case at bar the plaintiff was riding on the left-hand 
running board of the car, and his situation there imposed upon 
the railroad company the duty of exercising greater precaution 
than in the case of a passenger seated within the car. In 
this case the collision occurred, not with a vehicle moving 
at right angles, but with one moving in a contrary direction. 
This differentiating fact does not seecp. to me to take the case 
out of the doctrine of the Loudoun case. In both cases the 
motion of the car carrying the plaintiff to the point of the 
accident was a factor in causing it. I am aware that in 
Elliott v. Brooklyn Heights R. R. Co. (127 App. Div. 300) the 
learned justice writing for this court said: " I do not under- 
stand that the statement in the opinion in Loudoun v. Eighth 
Ave. R. R. Co. (162 N. Y. 380) that from the mere fact of a 
collision between two street cars of different companies at a 
crossing the maxim applies to the company carrying the plain- 
tiff, is now to be taken as the law. * * * The later case 
of Griffen v. Manice (166 N. Y. 188) sets all this right and 
puts it beyond discussion.' ' The Elliott case, accurately 
holding that the doctrine of res ipsa loquitur was not appli- 
cable, because the wrongdoer was not identified, is not, despite 
the above-quoted language of the learned writer of the opinion, 
inconsistent with the doctrine of the Loudoun case, which 



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Plumb r. Eichmond Light & Railroad Co. 259 

App. Div.] Second Department, February, 1981. 

rests solely upon the duty that a Qommon carrier owes to its 
passenger. Whether the decision in the Elliott case follows 
the doctrine of the Loudoun case is another matter. The 
ground upon which the decision in the Elliott case is based, 
viz., that the doctrine of res ipsa loquitur is not applicable, 
is not hostile to the Loudoun case. The difficulty of recon- 
ciling these two cases is caused by the fact that the justice 
who wrote in the Elliott case assumed that the Loudoun case, 
in so far as it authorizes the presumption of negligence on the 
part of the carrier, rests solely on the doctrine of res ipsa loqui- 
tur, accurately defined. The opinion in the Loudoun case 
was written by the same eminent judge who subsequently 
wrote for the court in Griffen v. Manice, which did not in 
terms overrule the Loudoun case. In fact in Hardie v. Boland 
Co. (supra) the Loudoun case is quoted as still the law. The 
learned judge who wrote in the Loudoun case held that the 
doctrine of res ipsa loquitur did not apply, because when there 
are two agencies concerned in an accident, and the presumption 
of negligence might apply to either one, the one liable is not 
identified. But the presumption asserted in that case and 
charged the jury in the case at bar is a presumption which 
rests primarily upon the duty which a common carrier owes to 
its passenger, in connection with circumstances showing that 
the injury might have been occasioned by a failure in the per- 
formance of such duty. So in Patton v. Texas & Pacific 
Railway Co. (179 U. S. 663) Justice Brewer, speaking for 
the court, said: " In the case of a passenger the fact of an 
accident carries with it a presumption of negligence on the 
part of the carrier, a presumption which in the absence of 
some explanation or proof to the contrary is sufficient to sus- 
tain a verdict against him, for there is prima facie a breach of 
his contract to carry safely." 

So long as the Loudoun case remains unquestioned by the 
Court of Appeals, I think it is our duty to approve a charge 
which is based upon the doctrine of that case and is applicable 
to a state of facts not essentially different. 

The judgment and order should be affirmed, with costs. 

Jenks, P. J., and Rich, J., concur; Putnam, J., concurs in 
separate opinion; Kelly, J., concurs with Putnam, J. 



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260 Plumb v Richmond Light & Railroad Co. 

Second Department, February, 1021. [Vol. 105. 

Putnam, J. (concurring) : 

The phrase res ipsa loquitur does not make for distinctness. 
Though perhaps not so often misused as res gestce, the maxim 
that the thing itself speaks has lost its point, and frequently 
serves to blur the edges of accurate legal definition. As 
originally used it stated the effect and.legal inference from a bare 
happening like objects falling into a street. (Mullen v. St. 
John, 57 N. Y. 567.) But this soon proved of little practical 
value in the case of a building going up under different con- 
tractors. (Wolf v. American Tract Society, 164 N. Y. 30.) 
J3o the import of this phrase was enlarged from the bare happen- 
ing to take in as a proper setting some of the attending circum- 
stances. (Griff m v. Manice, 166 N. Y. 188, 193.) The maxim 
thus comes to saying that with certain other circumstantial 
evidence a prima facie liability may arise; or, as we might say, 
res et cetera hquuntur. A contract duty obviously differs 
from the case of a pure tort. The apparent failure to carry 
safely a passenger naturally calls for an explanation. (Stokes 
v. SaUonstaM, 13 Pet. 181 ; Loudoun v. Eighth Ave. R. R. Co., 
162 N. Y. 380.) This distinction is now well recognized. 
(See Cosulich v. Standard Oil Co., 122 N. Y. 118, 128, by 
Parker, J.) " Excepting where contractual relations exist 
between the parties, as in the case of carriers of passengers and 
some others, negligence will not be presumed from the mere 
happening of the accident and a consequent injury." (Stearns 
v. Ontario Spinning Co., 184 Penn. St. 519, 523.) The court's 
charge rightly used the word " presumption," which meant 
that the street car company which was under the carrier's 
duty, was expected through its motorman to furnish an 
explanation, or at least to go forward with its proofs. This 
principle applies to a passenger on the running board of a street 
car. (Bamberg v. International Railway Co., 53 Misc. Rep. 
403, 406.) The charge was, therefore, free from ground of 
exception, and I agree to affirm. 

Kelly, J., concurs. 

Judgment and order unanimously affirmed on reargument, 
with costs. 



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Matter op Ybannakopouix)S. 261 



App. Div.] First Department, February, 1921. 



In the Matter of the Application of Anastasios D. Yban- 
nakopoulos, Respondent, for an Order Appointing an 
Arbitrator and Directing an Arbitration to Proceed Pur- 
suant to the Provisions of the Arbitration Law, in Accord- 
ance with the Provisions of a Certain Contract in Writing 
Dated April 26, 1920, Entered into between the Peti- 
tioner Herein and J. Akon & Company, Inc., a Domestic 
Corporation, Appellant. 

First Department, February 4, 1921. 

Arbitration — agreement to arbitrate controversies thereafter arising 
under contract need not be acknowledged — Arbitration Law, 
i 8, and Code of Civil Procedure, § 2366, construed and applied — 
petition and answer establish existence of controvers7 between 
parties — appeal — failure to raise question below as to consti- 
tutionality of Arbitration Law. 

The provisions of the Code of Civil Procedure mentioned in section 8 of the 
Arbitration Law, read in connection with section 2 of that law, show that 
the provisions in section 2366 of the Code of Civil Procedure requiring 
the instrument to be acknowledged apply exclusively to a submission 
entered into between the parties under the Code of Civil Procedure and 
not to a provision in a written contract to settle by arbitration a con- 
troversy thereafter arising between the parties to the contract. 

The provisions of section 8 of the Arbitration Law were obviously designed 
for the purpose of combining the provisions of the Code of Civil Pro- 
cedure and making them applicable to an arbitration under a contract 
so far as they are " practicable and consistent " with the provisions of 
the Arbitration Law, but the formalities prescribed by section 2366 of 
the Code of Civil Procedure are wholly inapplicable to an arbitration 
under a contract, for the reason that they would not be " practicable and 
consistent " under such an arbitration. 

The petition and answer, on which the order directing an arbitration of the 
questions in dispute and appointing an arbitrator was based, show that 
there is a controversy between the parties arising out of a contract 
eoncededly entered into between the parties. 

The failure of the appellant to raise the question of the constitutionality 
of the Arbitration Law, in the answering affidavit or at the Special Term, 
precludes him from raising that question on appeal. 

Appeal by J. Aron & Company, Inc., from an order of the 
Supreme Court, made at the New York Special Term and 
entered in the office of the clerk of the county of New York, 
on the 21st day of December, 1920, granting the petition of 



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262 Matter of Yeannakopotxlos. 

First Department, February, 1921. [Vol. 195. 

Anastasios D. Yeannakopoulos, directing an arbitration and 
appointing an arbitrator under the arbitration clause in the 
contract between the parties, pursuant to the provisions of the 
Arbitration Law of this State (Consol. Laws, chap. 72; Laws 
of 1920, chap. 275). 

Benjamin F. Norris of counsel [Botmer & Beale, attorneys], 
for the appellant. 

Robert H. Ewell of counsel [Merrill, Rogers & Terry, attor- 
neys], for the respondent. 

Greenbaum, J. : 

The petition upon which the order was granted alleges in 
detail the making of a contract between the parties dated April 
26, 1920, under which the petitioner agreed to purchase from 
the appellant 100 tons of Java sugar, a copy of the contract 
being annexed to the petition; that one of the provisions of 
the contract was as follows: "Any dispute arising in the 
execution of this contract to be submitted to arbitration in 
New York." The petition further alleges that thereafter and 
on or about July 29, 1920, " said J. Axon & Company, Inc., 
obtained payment of $50,400, from [the] First National Bank of 
Boston, by reason of the credit established by the petitioner " 
as provided for in the contract between the parties; that said 
payment was obtained from J. Aron & Company, Inc., with- 
out presenting ocean documents or the dock receipt or delivery 
order as called for by the contract and the letter of credit; 
that the latter corporation placed in storage with the New 
York Dock Company of Brooklyn for the account of the peti- 
tioner 1,000 bags of sugar claiming that said sugar constituted 
the 100 tons of Java white sugar mentioned under the con- 
tract of April 26, 1920; that the sugar thus put in storage was 
not the sugar called for by said contract; that the petitioner 
" offered to return to said J. Aron & Company, Inc., the said 
sugar, and demanded " that the sum of $50,4C0 be repaid to 
the petitioner, and that thereafter the petitioner sold the 1,000 
bags of sugar for the account of the appellant with the result 
that the petitioner was damaged in the sum of $30,129.82. 

It is also alleged in the petition that thereafter the peti- 
tioner requested the appellant corporation to comply with 
the arbitration clause in the contract, which it refused to do. 



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Matter of Yeannakopoulos. 263 

App. Div.] First Department, February, 1921. 

It appears from the opinion of the learned justice who 
granted the order appealed from that the application of the 
petitioner was opposed on two grounds and indeed it was 
conceded in open court before us upon the argument of this 
appeal that these two grounds were the only ones urged and 
that the appellant did not at Special Term make any claim that 
the Arbitration Law under which the petitioner obtained its 
order was unconstitutional. The two points relied upon by 
the appellant were, first, that the agreement to arbitrate was 
not acknowledged, and, second, that the moving papers failed 
to show that there was any controversy existing which was 
properly the subject of an arbitration. As to the first of these 
grounds, the appellant relies upon section 2366 of the Code of 
Civil Procedure which provides that a submission under the 
Code may be made " by an instrument in writing, duly 
acknowledged or proved, and certified, in like manner as a deed 
to be recorded." It is argued that under section 8 of the 
Arbitration Law, the provisions of section 2366 are made 
applicable both to an arbitration clause in a written contract 
as well as to a submission to arbitrate under the Code. Section 
8, however, provides that section 2366 and the other sections 
of the Code of Civil Procedure therein enumerated " so far 
as practicable and consistent with this chapter, shall apply to 
an arbitration agreement under this chapter." 

A study of the various provisions of the Code mentioned 
in section 8 of the Arbitration Law, read in connection with 
section 2 of that law, clearly shows that the provisions in 
section 2366 of the Code requiring the instrument of submission 
to be acknowledged apply exclusively to a submission entered 
into between the parties under the Code of Civil Procedure. 

Section 2 of the Arbitration Law contemplates two separate 
and distinct cases where arbitration may be enforced. The 
first applies to " a provision in a written contract to settle by 
arbitration a controversy thereafter arising between the parties 
to the contract," and the second to " a submission hereafter 
entered into of an existing controversy to arbitration pursuant 
to title eight of chapter seventeen of the Code of Civil Pro- 
cedure.' ' The provisions of section 8 of the Arbitration Law 
were obviously designed for the purpose of combining the 
arbitration provisions of the Code and making them appli- 



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264 Matter of Yeannakopoulos. 

First Department, February, 1031. [Vol. 106. 

cable to an arbitration under a contract so far as they are 
" practicable and consistent " with the provisions of the 
Arbitration Law. In other words, the Code provisions would 
in all instances apply to an arbitration in the case of a sub- 
mission pursuant to the Code. They would also apply to an 
arbitration embodied in a contract where that would be 
" practicable and consistent " with such an arbitration. But 
the formalities prescribed in section 2366 of the Code wmld 
be wholly inapplicable to an arbitration under a contract, for 
the reason that they would not be " practicable and consistent " 
under such an arbitration. It is decidedly " impracticable " 
to expect written contracts between merchants to be " duly 
acknowledged " and it is not likely that the Legislature con- 
templated that the provisions of section 2366 of the Code 
should have been intended to apply to such an arbitration. 

As to the second point it is sufficient to say that the peti- 
tion and answer upon which the order appealed from was 
based clearly show that there is a controversy between the 
parties arising out of a contract concededly entered into 
between the parties. In addition to the two points which 
have just been considered, the appellant argues before us the 
unconstitutionality of the Arbitration Law of this State, on 
the ground that it deprives the appellant of the right of trial 
by jury. As heretofore observed, that contention was not 
Biade before the Special Term and besides there was no such 
contention made in the answering affidavit, submitted in opposi- 
tion to the petition. Under these circumstances it seems 
. clear that by failing to raise the plea of unconstitutionality at 
Special Term, the appellant has waived its right to assert it 
on appeal. This doctrine has been uniformly recognized in 
numerous decisions in civil cases in this State. (Voae v. 
Cockcroft, 44 N. Y. 415; Matter of Andersen, 178 id. 416, 420; 
Fosdick v. Metal Shelter Co., Inc., 223 id. 700; Matter of Kipp, 
70 App. Div. 567.) 

The order is affirmed, with ten dollars costs and disburse- 
ments. 

Clakke, P. J., Dowling, Smith and Page, JJ., concur. 

Order affirmed, with ten dollars costs and disbursements. 



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Boyle v. Blankbnhokn. 265 

▲pp. Div.l Third Department, February, 1981. 

Ella M. Boyle, an Infant, by Allen Deyo, Her Guardian 
ad Litem, Appellant, v. Charles Blankenhorn and Others, 
Respondents. 

Third Department, February 28, 1921. 

Judgments — action to impress trust on real property transferred 
by Judgment debtor after verdict and before Judgment entered -~ 
lien of judgment not prior to that of deed. 

In an action to impress a trust on certain real property it appeared that 
after a verdict had been rendered against the owner of the property ta a 
tort action and before judgment was entered thereon, the defendant therein 
deeded the property to his father in part for a past consideration and in 
part for a present consideration and that said deed was recorded on the 
same day but before the entry of the judgment, and that said grantee had 
knowledge of the rendition of said verdict but there was no proof of a 
conspiracy or fraud. 

Held, that said deed passed good title to the grantee therein and the land, 
was not subject to any lien in favor of the plaintiff herein and the com- 
plaint should be dismissed. 

Appeal by the plaintiff, Ella M. Boyle, from a judgment of 
the Supreme Court in favor of the defendants, entered in the, 
office of the olerk of the county of Albany on the 2d day of. 
July, 1918, upon the decision of the court rendered after a trial 
at the Albany Trial Term without a jury, and as stated in the 
notice of appeal the appellant intends to bring up for review 
the decision and order of the court directing the entry of said 
judgment. 

Smith O'Brien [J. Sheldon Frost of counsel], for the appellant. 

Henry J. Crawford, for the respondents. 

Wooowakd, J. : 

The complaint alleges that the plaintiff secured a verdict in 
an action against the defendant Charles Blankenhorn for 
the sum of $1,200 on the morning of the 15th of April, 1914, 
and that a judgment for $1,315, damages and costs, was 
entered upon such verdict on the 16th day of April, 1914, at 
three thirty-two o'clock in the afternoon; that at the tims of 
the rendition of the said verdict the defendant Charles Blanken- 
horn was the owner of certain real estate in the town of Beth- 



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266 : Boyle v. Blankenhorn. 



Third Department, February, 1921. [Vol. 196. 

lehem, Albany county; that said real estate was of the value of 
$3,000, and that on the 16th day of April, 1914, " with full 
knowledge of the said verdict of $1,200 against said Charles 
Blankenhorn, and with the intent to hinder, delay and defraud 
the plaintiff and prevent her from collecting her said judgment 
of $1,315, or any judgment thereon, the said defendants 
Charles .Blankenhorn and James M. Blankenhorn on April 
16, 1914, entered into a conspiracy whereby the said defendant 
Charles Blankenhorn made, executed and delivered to the said 
James M. Blankenhorn a deed of said real estate, without con- 
sideration, and the same was fraudulent as against this plaintiff 
and prevents her from selling said real estate and realizing 
therefrom the amount of said judgment and that said deed 
was recorded in Albany County Clerk's office * * * on 
April 16, 1914, at 11:37 o'clock." The answer denies the 
material allegations, and, in addition to other matters, alleges 
as a defense on the part of both the material defendants that 
at the time of the making and delivery of the deed on the 16th 
day of April, 1914, the defendant Charles Blankenhorn was 
indebted to the defendant James M. Blankenhorn in the sum 
of $1,258; that he likewise owed his attorney the sum of $400, 
and that the deed was given for the purpose of paying this 
indebtedness, and in consideration of the defendant James M. 
Blankenhorn agreeing to pay said $400 to the defendant's 
attorney. 

Upon the trial of the action the learned court at Trial 
Term found the facts in favor of the defense asserted, and 
dismissed the complaint upon the merits. The plaintiff appeals 
from the judgment. 

There is no dispute as to the material facts. The plaintiff 
secured a judgment against the defendant Charles Blankenhorn 
in an action in tort, and after the return of the execution 
unsatisfied an execution against the body of the defendant in 
that action was issued and Charles Blankenhorn was impris- 
oned in the county jail for a period of six months, and the 
present action was brought to impress a trust upon the property 
covered by the deed of April 16, 1914. The learned trial 
court has found that Charles Blankenhorn owed his father the 
sum of $1,240; that he owed his attorney $420, and that these 
sums constituted the consideration for the deed to the premises; 



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Boyle v. Blankenhorn. 267 

App. Div.] Third Department, February, 1M1. 

that the reasonable market value of the property was the sum 
of $1,900, upon which there was a mortgage for $1,450, leaving 
an equity of $450, and upon these facts it was held as matter 
of law that the deed conveyed a good title to James M. Blanken- 
horn, and that the defendants were entitled to judgment for 
costs. 

There was no proof of any conspiracy or fraud; the plaintiff 
makes no requests to find any facts different from those found 
by the learned court at Trial Term, except that it is stipu- 
lated that both the material defendants had actual knowledge 
of the fact that a verdict had been rendered against Charles 
Blankenhorn for the sum of $1,200 at the time the deed was 
delivered, and the only questions for review are the conclusions 
of law, which seem to tfs to follow naturally and inevitably. 
The plaintiff had a verdict on the 15th day of April, 1914. 
She had a perfect right to enter the judgment upon that verdict 
on the fifteenth day of April, for it is alleged that the verdict 
was returned in the morning of that day. She had a right to 
enter it on the morning of the sixteenth day of April, and had 
she done so at any time prior to eleven thirty-seven o'clock 
of that morning her judgment would have constituted a lien 
on the real estate. But James M. Blankenhorn also had 
rights; his son owed him a considerable sum of money, and he 
had agreed to pay the sum of $420 owed by the son to his 
attorney. The fact that a verdict had been rendered in favor 
of the plaintiff did not deprive him of the right to collect his 
debt if he could, and so long as the plaintiff had not entered 
her judgment no lien attached to the real estate in question. 
Every man is justified in paying his debts. He has a right 
to pay such of his creditors as he chooses, even to the extent 
of transferring all his property to the favored ones, provided 
there is no deceit or fraud. (Commercial Bank v. Sherwood, 
162 N. Y. 310, 318, 319, and authorities there cited.) The 
plaintiff had it in her power to enter her judgment and secure 
a lien upon the premises here involved, but she had no superior 
rights until she had performed the conditions, and the court 
properly dismissed the complaint upon the merits. 

The judgment appealed from should be affirmed. 

Judgment unanimously affirmed, with costs. 

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268 Rice v. Oity of Mechanicville. 

Third Department, February, lt21. [VoL 195. 



George A. Rice, Appellant, v. City op Mechanicville, 

Respondent. 

Thkd Department, February 28, 1921. 

Municipal corporations — accrual of cause of action against city 
of MechanlcviUe — liability denied unless notice of claim served 
within thirty days — action accrues when notice served. 

Under the provision of the charter of the city of Mechanicville (section 116 
of chapter 170 of the Laws of 1915) that the city " shall not be liable for 
any damages or injury sustained in consequence of defects," etc., in its 
streets, " unless notice in writing shall have been served upon the mayor 
or acting mayor within thirty days after the happening of the casualty/ 9 
a cause of action does not accrue against said city within the meaning of 
said charter till the notice so prescribed is served. 

Accordingly, since this "action was commenced within six months, the time 
•limited by said charter, after the service of the notice, the plaintiff's 
demurrer to the defense of the Statute of Limitations should have been 
sustained. 

Appeal by the plaintiff, George A. Rice, from a judgment of 
the Supreme Court in favor of the defendant, entered in the 
office of the clerk of the county of Saratoga on the 13th day 
of December, 1919, overruling plaintiff's demurrer to the 
affirmative defense set forth in the answer. 

Robert Frazier, for the appellant. 

Edward C. M<&inity } for the respondent. 

Woodward, J.: 

JThe complaint alleges facts to constitute a cause of action 
'for negligence on the part of the defendant in the maintenance 
of its highways, resulting in personal injuries to the plaintiff. 
The defendant asserted as a defense the provisions of chapter 
170 of the Laws of 1915, the charter of the defendant city, 
which provides in section 116 that " no action shall be com- 
menced against said city on any duly presented claim until 
after the expiration of thirty days from the presentation 
thereof, nor shall any such action be maintained against said 
city which shall not have been commenced within six months 
after the cause of action accrued," and that the action was not 



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Bice v. City of Mechanicville. 269 

▲pp. Div.] Third Department, February, 1001. 

commenced until the 12th day of October, 1018, more than 
six months after the happening of the accident on* the 14th 
day of March, 1918. The plaintiff demurred to this defewe 
as insufficient in law, and the demurrer has been overruled. 
The question presented upon this appeal is whether the ax 
months' limitation began at the time of the happening of the 
accident on the 14th day of March, or at some later date. 
We are clearly of the opinion that the court has erred in over- 
ruling the demurrer. 

The accident out of which this action grows occurred cm the 
14th day of March, 1918. On the 13th day of April, 1918, 
the plaintiff caused to be served the notice required by section 
116 of chapter 170 of the Laws of 1915, being the charter of 
the defendant city. This was within thirty days after the hap- 
pening of the " casualty," which is a condition precedent to 
the cause of action. (Reining v. City of Buffalo; 102 N. Y. 808; 
Curry v. City of Buffalo, 135 id. 366, 369, 370; Winter v. City 
of Niagara Falls, 190 id. 198, 203; Carson, v. Village of Dresden, 
202 id. 414, 418.) The section cited provides that the " city 
of Mechanicville shall not be liable for any damages or injury 
sustained in consequence of defects," etc., in its streets, 
" unless notice in writing shall have been served upon the 
mayor or acting mayor within thirty days after the happening 
of the casualty," etc. Obviously, no cause of action accrued 
by the mere happening of the accident. The whole matter of 
the maintenance of this class of actions was within the control 
of the Legislature. It could refuse a right of action, and it 
could impose any conditions precedent to the maintenance of 
such actions. (Curry v. City of Buffalo, supra.) In this case 
it has refused a right of action unless the plaintiff, within 
thirty days, serves a notice in accord with the requirements 
of the statute. During the thirty days, or up to the time of the 
serving of the prescribed notice, no right of action existed 
against the city of Mechanicville. When, on the 13th day of 
April, 1918, the plaintiff served the required notice; when 
he elected to fulfill the condition precedent (Curry v. City of- 
Buffalo, supra, 370, and authorities there cited) the right 
of action accrued, and not before. The statute absolutely 
forbids the prosecution of any action until the proper notice 
has been served. It attaches to all actions whatsoever oom- 



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270 Riob v. Citv op Mechanicville. 

Third Department, February, 1921. [Vol 195. 

ing within the specifications of the statute, and by force of 
the enactment this notice becomes an essential part of the 
cause of action, to be alleged and proved as any other material 
fact. It does not purport to give the city a defense dependent 
upon its election to use it, but expressly forbids the institu- 
tion of any suit until the preliminary requirements have been 
complied with. (Reining v. City of Buffalo, supra, 310,) 
A fact which must be alleged and proved as a part of the cause 
of action must, of necessity, constitute an essential element of 
the cause of action, and it did not accrue until the plaintiff, 
within the time limited by the statute, had executed* and served 
the notice prescribed. 

If we are right in these propositions, then on the 13th day 
of April, 1918, a cause of action accrued to the plaintiff, but 
the defendant's charter further provided that " no action 
shall be commenced against said city on any duly presented 
claim until after the expiration of thirty days from the pre- 
sentation thereof, nor shall any such action be maintained 
against said city which shall not have been commenced within 
six months after the cause of action accrued/' Under the 
authorities already cited it is necessary to aver and prove 
that the action was not commenced until after the expiration 
of thirty days from the presentation of the notice, for the 
" plain intent of the requirement was to protect the city from 
the costs, trpuble and annoyance of legal proceedings, unless 
after a full and fair opportunity to investigate and pay the 
claim, if deemed best, they declined to do so." {Reining v. 
City of Buffalo, supra.) This, it would seem, prevented the 
accruing of this particular cause of action until the lapse of 
thirty days from the 13th day of April, 1918, for it could not 
have been alleged that the necessary time had elapsed until 
after such thirty days, and this was essential to the statement 
of any cause of action against the defendant. 

It is not necessary, hpwever, in this case to go to that extent. 
Taking our stand at the date of the service of the first notice, 
oopcededly served on time, on the 13th day of April, 1918, 
and assuming the cause of action to have accrued on that 
date, we compute six months under the rule laid down in section 
30 of the General Construction Law, and the six months' 
limitation expired on the 13th day of October, 1918. The 



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Thompson v. Fort Miller Pulp <fc Paper Co. '271 

App. Div.] Third Department, February, lttt 

action was actually commenced on the twelfth day of October, 
and was clearly within the time limited by the statute. In 
either case, therefore, the action was commenced " within six 
months after the cause of action accrued/' and the judgment 
appealed from must be reversed. 

All concur. 

Judgment reversed, with costs, and demurrer sustained, with 
costs. 



Susan Thompson, Appellant, Respondent, v. The Fort 
Miller Pulp and Paper Company, Respondent, 
Appellant. 

Third Department, February 28, 1921. 

Waters and watercourses — navigability of Hudson river — dams — 
overflowing ripaga/x lands — equitable relief denied — backing 
water into ditches on plaintiff's land technical £ trespass — 

excessive damages. 

• 

The Hudson river between Washington and Saratoga counties is a navigable 
stream. 

In an action to recover damages for the overflowing of land alleged to have 
been caused by water backing into ditches on plaintiffs land as a result 
of a dam in the Hudson river maintained by the defendant, and to abate 
the dam as a public nuisance and for an injunction restraining the defend- 
ant from maintaining the dam at its present height, evidence examined, 
and held, that the maintenance of said dam was not a public nuisance; 

That while the dam did not raise the river enough to overflow the bank at 
plaintiff's land it did raise it enough to back the water into plaintiff's 
drainage ditches, the bottoms of which were from three to five feet below 
the top of the bank, and a technical trespass was thereby committed 
from which the plaintiff suffered some damage. 

The privilege accorded to plaintiff to apply at any time at the foot of the 
judgment for an injunction, upon showing that the ends of justice require 
it, was all the relief that the plaintiff was entitled to in that regard; it 
will serve to prevent any adverse or prescriptive right ripening in the 
defendant. 

On all the evidence, held, that an award of damages of $2,000 was excessive 
and should be reduced to $150. 

Cross-appeals by the parties, Susan Thompson and The 
Fort Miller Pulp and Paper Company, from a judgment of 



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272 Thompson v. Fort Miller Pulp <fc Paper Co. 

Third Department, February, 1921. [Vol. 195. 

the Supreme Court in favor of the plaintiff, entered in the 
office of the clerk of the county of Washington on the 7th 
day of April, 1920, upon the decision of the court rendered 
after a trial without a jury at a Trial Term of the Supreme 
Court. 

Rogers & Sawyer [Erskine C. Rogers of counsel], for the 
plaintiff. 

William S. Ostrander, for the defendant. 

Kiley, J.: 

The locus in quo of this litigation is in Washington and 
Saratoga counties in this State, with the Hudson river sepa- 
rating the main parts of the properties involved. The action 
was commenced in June, 1912. It was tried before the court 
without a jury and the trial was finished some six or seven 
years later. As both parties have appealed, for convenience 
the parties will be referred to as plaintiff and defendant. The 
defendant is a domestic corporation, and owns and operates 
a pulp and paper mill at or near Fort Miller, N. Y. This 
plant is located jon the east bank of the Hudson river, at which 
point it has a dam extending across the river, by means of 
which dam it impedes the flow of the water, and confines it, 
releasing it to turn its wheels, thus creating the power used. 
The river runs practically north and south through and 
between those properties. Defendant owns real estate on 
each side of the river against which the ends of the dam abut. 
Xhe lands on the east side of the river were acquired by 
defendant and its predecessors some years before the opposite 
lands on the west side of the river. As early as 1804 defend- 
ant's predecessors obtained the right from the {State to erect 
on the east side of the river a wing dam, viz., a dam extending 
out into the river but not beyond its center line; such dam 
was built and maintained for several years prior to the year 
1882. In the month of July, 1882, the predecessors of defend- 
ant acquired the land on the west or opposite side of the river 
by deed, in and by which rights, other than the fee, were 
attempted to be conveyed, and were conveyed so far as the 
grantor had such rights. The recital in the deed for that 
purpose reads as follows: " The right to build a dam across 



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Thompson v. Fort Miller Pulp & Paper Co. 273 

App. Biv.] Third Department, February, 1831. 

said river or any part of it opposite to said farm and to abut 
the same against the west bank of said river on said farm and 
to keep and maintain the same there forever." After acquiring 
the last-mentioned lands, the predecessors of the defendant 
extended its dam from the east toward the west to within 
twenty or thirty feet of the west shore. Defendant claims 
to own the bed of the river between the east and west shore 
to the extent of its shore line opposite its real property on either 
side. A portion of the claim is based, so far as the east half 
of said river is concerned, on the " Schuyler Patent," granted 
by King George II of England in 1740; so far as the west half 
of said river is concerned, it is based on the " Kayaderosseras 
Patent," granted by Queen Anne in 1708. In addition the 
defendant claims that as this is above tide water, its rights 
as riparian owner carry it to the thread (center) of the stream. 
The trial court f ound that defendant had not acquired title under 
either theory. (See 111 Misc. Rep. 477.) For such holding 
there is authority aplenty. (Fulton Light, H. & P. Co. v. State 
of New York, 200 N. Y. 400, and cases cited.) In Danes v. State 
of New York (219 N. Y. 67) at page 72 of the opinion the court 
says: " The law of New York, as a colony and as a State, has 
consistently declared through legislative and judicial decisions 
that the rule that the owner of the contiguous bank of a non- 
tidal navigable river owns to its center, is not, for certain excep- 
tional reasons, applicable to the Mohawk river and parts of 
the Hudson river." It is not held here that the beds of 
those rivers are not inalienable; I think they are; but the 
decision is not necessary to determine the issue involved here. 
So without disturbing the finding of the court below in that 
regard, attention to the issues as framed by the pleadings 
and as finally presented by the evidence will be had. A little 
over a mile north of this dam, as it is now and as it was in 
1882, is situate plaintiff's farm of about two hundred acres, 
about forty acres of which is an island in the Hudson river, 
the lower part of which is opposite the north part of said farm. 
The plaintiff obtained this farm from her husband with whom 
she had resided upon this farm since 1867; he died in 1895. 
The trial court found, and upon sufficient evidence, that the 
dam, as constructed and maintained, down to 1894, gave no 
App. Div.— Vol. CXCV. 18 



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274 Thompson v. Fort Miller Pulp & Paper Co. 

Third Department, February, 1921. [Vol. 105. 

cause for complaint to other riparian owners. In 1894 and 
1895 the defendant repaired its whole dam and reconstructed 
that portion covered by its purchase of the lands on the 
westerly side and whatever other rights it acquired by that 
purchase. The court has found upon evidence sufficient to 
sustain the finding that the gap of twenty or thirty feet at 
the extreme west end was closed by a substantial structure 
and that said dam west of the thread of the river was raised 
eighteen inches above its former height, eighteen or nineteen 
years after the plaintiff brought this action. In and by her 
complaint she alleges that the land was used and occupied by 
her for agricultural purposes; that erected thereon were a 
dwelling house and necessary farm buildings; that the dam, 
as above described, was wrongfully maintained without the 
consent of herself or her predecessors in title; that as so 
maintained the dam set back the waters of the river upon 
about thirty-five acres of her farm and rendered it damp, wet, 
soggy, marshy and "totally unfit for cultivation;" that dirt 
and debris were spread over the land; that pools of stagnant 
water were caused to stand upon the land and around the 
buildings; that an unsanitary condition was thereby created; 
that fences were injured, and ditches upon the land were filled 
and the banks of such ditches were washed out; that the 
roots of trees were washed bare and the trees toppled and fell 
and were lost; that her loss in annual rental value was $500; 
and that the freehold had been damaged to the extent of 
$1,000; that in the river she owned a valuable dam site, 
appropriated by the State, which if it was not for the wrongful 
raising of defendant's dam, would have netted her more 
money from the State of New York when it made such appro- 
priation; that the Hudson river is a public highway, and 
finally that the maintenance of said dam by the defendant, 
as maintained, in the manner complained of by plaintiff, 
constituted and does still constitute a public nuisance. Defend- 
ant denies plaintiff's allegations of damage; and alleges that 
it has maintained said dam, effective as to backing up water, 
for the past forty years before the commencement of this 
action; that for more than twenty years this defendant and its 
predecessors in title openly and notoriously maintained the 
dam at the point and on the part complained of (the western 



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Thompson v. Fort Miller Pulp & Paper Co. 275 

App. I>iv.] Third Department, February, 1921. 

part) at an equal or greater height than at that time; denies 
that it maintains a public nuisance, and that the river is a pub- 
lic highway. Upon the issue thus made, plaintiff demands 
judgment for $4,000 damage, that the nuisance as alleged be 
abated, and that plaintiff have an injunction preventing the 
maintenance of the dam at its present elevation. The court 
held that the Hudson river was navigable, a public highway; 
such finding is sustained by the facts and the law. (Danes v. 
State of New York, 219 N. Y. 67, and cases cited.) I am aware 
that an apparently different holding can be found. (Morgan 
v. King, 35 N. Y. 454.) In that case the question in dispute 
related to a part of the river that had not been used as a public 
highway nor so designated; the Hudson had been so used and 
permitted by the State. The weight of authority is to the 
effect that it is a public highway. The holding either way does 
not affect the rights of the parties as I conceive them to be 
and as they were finally submitted and determined. ( United 
P. B. Co. v. Iroquois P. & P. Co., 226 N. Y. 39.) In Melker 
v. City of New York (190 N. Y. 481) at page 488 of the opinion, 
the court says: " We think that each case must depend on its 
own facts for classification as a nuisance at law, or in fact, 
or neither." The trial court did not find that the maintenance 
of the dam was a public nuisance either in law or fact. Tres- 
pass against plaintiff's rights was found; if she suffered any of 
the damages alleged, she was entitled to such finding. (Heeg 
v. Licht, 80 N. Y, 580.) Plaintiff was not entitled to the more 
harsh finding. (Fvrt Plain Bridge Co. v. Smith, 30 N. Y. 44.) 
The trial court refused a permanent injunction. That is 
equitable relief. The eqjiitable relief sought by plaintiff in 
this action is based upon her alleged legal cause of action. 
That she had a cause of action for something was properly 
found, viz., for damage. That the amount is on the wrong 
basis, and excessive, I shall show presently. Having properly 
found that plaintiff suffered some damage, which was a tech- 
nical trespass, it does not follow that an injunction should 
issue. (McCann v. Chasm Power Co., 211 N. Y. 301.) The 
privilege accorded plaintiff, to apply at any time at the foot 
of the judgment, for an injunction, upon showing that the 
ends of justice required it, was all the relief plaintiff was 
entitled to in that regard; it will serve to prevent any adverse 



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276 Thompson v. Fort Miller Pulp & Paper Co. 

Third Department, February, 1921. [Vol. 195. 

or prescriptive right ripening in the defendant. The opinion 
of the court below (111 Misc. Rep. 485) says that the damage 
to the island was covered by an appropriation from the State 
and does not consider it as an element entering into his award 
in favor of the plaintiff. As aforesaid this action was com- 
menced in June, 1912. Judgment was entered in April, 1920, 
Seven years and nine months between the two dates. Add to 
these figures six years prior to the commencement of the action 
and you have thirteen years and nine months. In considering 
the only question of any importance left for consideration, it is 
well to recall just what the trial court did in that regard. It 
found as to damage to the freehold as follows: " 12. That 
the permanent depreciation in value to plaintiff's said farm 
from the effects of the dam if continued at its present height 
is $2000." In his opinion the learned judge says this finding 
is not to be considered effective, should either party elect to 
disregard it; an examination of the judgment shows that the 
plaintiff elected to disregard it, and of course the defendant 
had no intention to take advantage of such finding and could 
not do so in absence of plaintiff's acquiescence. The judg- 
ment is based on the difference of rental value, $1,400, as 
found by the court. After the eliminations hereinbefore 
referred to and considered, the rights of these parties are 
narrowed down to their respective rights as riparian owners. 
( United P. B. Co. v. Iroquois P. & P. Co., 226 N. Y. 38.) 
Starting with this premise a consideration of the several 
parties, their location and situation is necessary. We are 
referred to no rights given to or acquired by the defendant 
to overflow any lands that it does not own. The same is 
true as to the plaintiff. The title to the bed of the stream 
being in the State, the water flowing over that bed is held 
by the State for the use pi the people as a whole, equally, with 
the exception that none can land on the land of the ripa- 
rian owner without his, her or its consent. (Gould v. Hudson 
River R. R. Co., 6 N. Y. 522.) It follows that neither of 
these parties had or has the right to invade the rights of the 
other. The plaintiff's cause of action here cannot be based 
upon any 'other consideration. (Fort Plain Bridge Co. v. 
Smith, 30 N. Y. 44.) The evidence discloses that this farm 
lies on the west bank of the Hudson river; that for a consider- 



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Thompson v. Fort Miller Pulp & Paper Co. 277 

App. Drr.] Third Department, February, 1931. 

able distance it borders on the river; that the fall in the river 
from the part of the farm involved here to the dam is about 
five feet; that the area involved is about thirty-five acres; 
these thirty-five acres are back of the buildings which are along 
the river bank ; the bank at the edge of the water, at its natural 
flow, is about four or five feet above the water. The land from 
the edge or bank of the river slopes back toward the west to 
a decrease in the bank elevation at the brink of about one 
to two feet; it reaches its lowest level about the center of this 
thirty-five acre piece. Immediately west of the aforesaid 
plot of land the land commences to ascend toward the west 
and north. Before the times complained of herein and now 
there was and is a main ditch on the north bounds of the farm 
discharging into the Hudson river; it started from about the 
center of the alleged affected area. To the south there was 
and is another ditch, running for several hundred feet along 
the southern boundary of the farm; it crosses the corner of the 
Austin farm, crosses the road in a culvert, and discharges 
through a ditch about three feet deep into the river. This 
ditch starts from the same point as the one on the northern 
boundary. This thirty-five-acre plot, which it is claimed is 
destroyed, is gridironed with ditches; they empty into these 
main ditches. There are springs upon this piece of land, and 
its general description is that it is and always was low, much of 
the time wet, and of marsh formation. These ditches were 
all dug before there was any complaint or reason for complaint 
about the overflow from the dam in the river. Were they 
dug and maintained in anticipation that at some future time 
a dam would be built or raised that would impede the flow 
of the river so that it would back up onto the land? It seems 
to me from this evidence that similar conditions to what is 
now claimed existed before 1894. The elevation at the dam 
is 115; at the bottom the Austin ditch, viz., the one draining 
the farm from the south, is 117; in feet and inches, the bottom 
of the southern ditch is two and one-half feet above the crest 
of the dam; in order to overflow the banks of the river on this 
farm the water would have to be some eight or nine feet over 
the crest. The river is nine hundred feet wide opposite the 
farm, and seven hundred feet at the dam. Because of the pecu- 
liar formation of the river above the dam, a raise of a foot 



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278 Thompson v. Fort Miller Pulp & Papbr Co. 

Third Department, February, 1921. [Vol. 195. 

at the dam would not effect a raise of over four to six inches 
in the wide expanse of water opposite the farm. The claim 
that the water ever overflowed the banks, except in extreme 
freshets, is not sustained by the evidence; it is obvious that 
when the river rises from natural causes the dam has no 
effect on it at its present elevation. It is proven and prac- 
tically conceded that the only way the plaintiff's land is over- 
flowed by water from the river is through the ditches, the 
bottom of which are from three to five feet below the surface 
of the bank. The defendant is consequently charged, in this 
judgment, with damage it is claimed comes from water let 
into the ditches dug and maintained or caused or permitted 
to be by the plaintiff and her predecessors. More than that, 
defendant is qharged with all of the damage it is claimed is 
done by the water upon this land, from every source, as if 
it all came through the ditch from the river. Plaintiffs son- 
in-law swore that the annual rental value of the farm in its 
present condition was $500, and without the condition alleged 
to have been created by the raising of the dam, $750. No 
other evidence was given. We are not left in doubt as to how 
he computes the damage. On cross-examination he was 
asked these questions: " Q. Regardless of how the water came 
to be backed in there, according to your statements. In 
other words, you assumed that whatever water came on there 
was put back there by the dam, .didn't you? A. Yes, sir. 
The Court: That is, so far as you are testifying on the ques- 
tion of damages? A. Yes, sir." The evidence leads to the 
irresistible conclusion that only a very small portion of the 
water that is seen at times upon the land comes from the 
river and main ditches. The evidence shows that when the 
owner occupied and worked this farm it was a good producer; 
that he kept the ditches open, and that now they are, more 
or less, filled up; that the farm for years has been run by hired 
men, renters, or on shares. It is a matter of common knowl- 
edge that river bottoms (land along the river) are always low 
and consequently damp; that the forests of the Adirondacks 
have been much thinned out, so that the snows are not held 
and slowly melted; they are now exposed to the sun, melt 
rapidly and the waters come down. They reach this plot, 
prepared by these ditches to receive them; those are depres- 



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Thompson v. Fort Miller Pulp & Paper Co. 279 

App. Div.] Third Department, February, 1921. 

sions in the surface of this affected piece of land; water lodging 
there has to soak and evaporate. The plaintiff's position is 
that as to the water in the ditch from the river, first, it stops 
other water, if any there, from flowing out; second, that the 
river water, by means of capillary attraction, is carried to the 
utmost boundaries of the thirty-five acres and deposited and 
left in the soil. Capillary attraction is not thus discriminatory; 
it makes no election between the water from the river and that 
from the hills and from the springs on the land in question. 
The evidence leads to the conclusion that water from the two 
ditches would not go upon the land until a considerable body 
was there from other sources. The damage from the river 
water through the ditches, under the conditions disclosed by 
this evidence, is infinitesimal. The plaintiff has the right to 
exercise her riparian rights for drainage so long as she does not 
interfere with the rights of the public or invade the shore line 
or riparian rights of others. The defendant has the same 
rights. Where it is lame here is that it lands the water that 
it sets back upon the land of another, in other words, invades 
her shore line, her riparian possession. For that it is liable; 
the amount is so small that it almost defies computation. Ten 
dollars a year will amply cover this damage for the time 
involved as found in the judgment. The amount of damage 
should be $150. 

Judgment accordingly with disapproval of the findings of 
fact and conclusions of law contrary to this opinion. 

All concur. 

Judgment as to damages reversed as excessive, and new 
trial granted, with costs to appellant to abide event, unless 
the plaintiff within twenty days stipulates to reduce the dam- 
ages to $150; upon such stipulation the judgment is so modified 
and as modified affirmed, without costs. Judgment so far as 
it denies the injunction affirmed, without costs. 



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280 People ex rel. Durham Realty Corp. v. La Fetra. 

First Department, December, 1920. [Vol. 106. 



The People op the State op New York ex rel. Durham 
Realty Corporation, Appellant, v. Edward B. La Fetra, 
a Justice of the City Court of the City of New York, 
Respondent. 

First Department, December 24, 1020. 

Landlord and tenant — mandamus compelling issuance of precept 
in summary proceedings — statutes — sufficiency of emergency 
message by Governor certifying to necessity for immediate pas- 
sage of biU — examination of official records of Legislature to 
determine validity of statute — effect of certification by Secretary 
of State to passage of act — impeaching legislative records by 
extrinsic evidence. 

Mandamus is the appropriate remedy to compel a justice of the City Court 
of the City of New York to issue a precept in summary proceedings for 
the removal of a tenant. 

The fact that the Governor's emergency message certifying to the necessity 
for the immediate passage of chapter 942 of the Laws of 1920, which was 
sent after the bill had been amended so as to limit its application to cer- 
tain cities, referred to the title as it originally stood, is immaterial where 
the reference to the number and reprint number of the bill dearly indicated 
that the act in question was the one intended. 

As a general rule it is not permissible to examine the official records of 
legislative bodies in passing on the validity of a statute, but where the 
validity of a statute depends upon a particular thing being shown or not 
shown by the official journals, it is proper to examine them. 

The certification by the Secretary of State that a statute was duly enacted 
does not preclude inquiry with respect to whether the provisions of article 
3, section 15, of the State Constitution, requiring a bill to be printed and on 
the desks of the members of the Legislature for three days before passage 
unless the Governor shall have certified by an emergency message to the 
necessity for immediate passage, have been complied with. 

Parol evidence cannot be received to impeach the official certification by 
the presiding officers of the Legislature or the journals of the respective 
houses as to the passage of a bill; therefore, the affidavits of the petitioner 
tending to impeach the official journals could not be considered in deter- 
mining whether chapter 942 of the Laws of 1920 was duly enacted. 

Appeal by the relator, Durham Realty Corporation, from an 
order of the Supreme Court, made at the New York Special 
Tain and entered in the office of the clerk of the county of 



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People ex rel. Durham Realty Corp. v. La Fetra. 281 

App. Div.] First Department, December, 1920. 

New York on the 13th day of December, 1920, denying 
relator's motion for a peremptory writ of mandamus. 

George L. Ingraham of counsel [John M. Stoddard and 
Alexander C. MacNidty with him on the brief], for the 
appellant. 

Robert P. Beyer, Deputy Attorney-General, for the respondent. 

William D. Guthrie and Julius Henry Cohen, Special Deputy 
Attorneys-General, for the Attorney-General. 

Elmer G. Sammis and Bernard Hershkopf, for the Joint 
Legislative Committee on Housing, as amid curia. 

Laughlin, J.: 

On the 20th day of October, 1920, the relator presented a 
petition in due form to the City Court of the City of New 
York showing that it was the owner of an .apartment house 
known as 490 West End avenue, in the borough of Manhattan, 
New York; that on or about the 28th day of May, 1917, by a 
lease in writing it let to one Weil an apartment in said build- 
ing for the term of three years ending September 30, 1920; 
that' the tenant was holding over after the expiration of the 
term without its permission; that the proceeding was not one 
of those authorized or provided for in subdivision 1-a of section 
2231 of the Code of Civil Procedure, as added by chapter 942 
of the Laws of 1920, and that it made a formal application in 
writing to said court for the issuance of a precept for the 
removal of the tenant, which was denied in writing by the 
defendant, who is a justice of the said court, on the ground 
that the issuance of the precept was not authorized by the 
statute. The motion was for a mandamus requiring the issu- 
ance of a precept. Mandamus in such case is the appropriate 
remedy. (People ex rel. Lewis v. Fowler, 229 N. Y. 84.) 
The contentions here made with respect to the invalidity of 
the statute withdrawing the remedy of summary proceeding 
and of the right of the relator to the remedy as it existed when 
the contract was made are answered by the opinion in People 



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282 People ex rel. Durham Realty Corp. v. La Fetra. 

First Department, December, 1930. [Vol. 196. 

ex rel. Brixton Operating Corporation v. La Fetra (194 App. Div. 
523), argued and decided herewith. 

The appellant, however, makes a further point that said 
chapter 942, withdrawing the summary proceeding remedy 
with respect to tenants holding over after the expiration 
of their term, with certain exceptions not here in point, was 
not passed in the manner provided by article 3, section 15, 
of the Constitution, which provides as follows: " No bill 
shall be passed or become a law unless it shall have been 
printed and upon the desks of the members, in its final form, 
at least three calendar legislative days prior to its final passage, 
unless the Governor, or the acting Governor, shall have certified 
to the necessity of its immediate passage, under his hand and 
the seal of the State." 

Concededly the bill was not printed and upon the desks 
of the members in its final form three calendar legislative 
days prior to its final passage. It is claimed that the Governor 
did not fully certify to the necessity of its immediate passage 
so as to warrant its passage without its having been so printed 
and upon the desks of the members. Its authenticity was 
duly certified by the presiding officer of each house and it 
was signed by the Governor, and appears in the official edition 
of the laws. 

The appellant in support of this claim did not rely on the 
bill itself and the official certification thereof and official 
journals of the two houses but attempted by affidavits to 
impeach the official journals. 

Chapter 942 originated in the Senate where it was introduced 
on the twentieth of September and became known as Senate 
Bill No. 25 and as printed was given the introductory number 
25 and the printed number 25. It was originally intended to 
apply to all cities of the first class and to cities in a county 
adjoining and the title of the bill so provided, and it was 
designed to repeal chapter 137 of the Laws of 1920 which 
applied to the same cities. The bill was evidently referred 
to the committee on affairs of cities. The journal of the Senate* 
shows that on the twenty-fourth of September that committee 
was discharged from further consideration of the bill; that the 

* See vol. 2, Appendix II, pp. 90-92.— [Rep. 

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People ex rel. Durham Realty Corp. v. La Fetra. 283 

App. Div.] First Department, December, 1921. 

rules were suspended and the bill was ordered to a third 
reading; that when it was reached on the order of third reading, 
it was recommitted to the committee with instructions to 
amend and report it forthwith to be reprinted as amended 
and restored to its place on the order of third reading, and 
that the amendment related to the title, which was changed 
so as to limit it to cities of a population of 1,000,000 or more 
and cities in a county adjoining such a city. The effect of 
that was to except from the bill the cities of Buffalo and 
Rochester. The Senate journal further shows that the com- 
mittee reported the bill amended as directed and that it was 
ordered reprinted and placed on the order of third reading; 
that a message from the Governor addressed " To the Legis- 
lature" in the form prescribed by said provisions of the 
Constitution, was then received at the hands of his secretary 
and read and incorporated in the journal; that the Governor's 
message recited that, it appearing to his satisfaction that the 
public interest required it, he certified " to the necessity of 
the immediate passage of Senate bill (Int. No. 25, Printed 
No. 25)," and he quoted the title of the bill as originally intro- 
duced, followed by the words " as amended." The bill as so 
amended was then passed and the clerk was directed to deliver 
the bill to the Assembly and request concurrence therein. It 
evidently was then again passed by the Senate, for its journal* 
shows that it was returned by the Assembly with a message 
to the effect that it was concurred in by the Assembly with two 
amendments set forth in full, the effect of which was to 
require the petitioner, who desired possession for the purpose 
of demolishing the premises with the intention of constructing 
a new building, to show that such desire was in good faith, and 
to extend the bill, in so far as it authorized landlords to regain 
possession of their property, to a proceeding to recover posses- 
sion where the building had been sold in good faith to a 
cooperative ownership corporation and was to be occupied 
personally by the stockholders. The journal of the Assembly f 
shows that the bill was received from the Senate for concur- 
rence, and the title of the bill as so amended is set forth and 

* See vol. 2, Appendix II, pp. 100-102.— [Rap. 
t See vol. 4, Appendix II, pp. 97-99. — [Rep. 



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284 People ex rel. Durham Realty Corp. v. La Fetra. 

First Department, December, 1990. [Vol 105. 

the numbers by which it had then oome to be known, namely, 
" (No. 60, Rec. No. 21); " that it then had a first reading in 
the Assembly and was amended as already stated, and was 
then read a second time and ordered to a third reading; that 
thereupon a message from the Governor, in due form as 
required by these provisions of the Constitution, addressed 
" To the Legislature," was received, reciting that, it appear- 
ing to his satisfaction that the public interest required it, he 
hereby certified to the necessity of the immediate passage of 
" Senate bill (Int. No. 25, Assembly Reprint No. 68, Printed 
No. 25) ," but quoted the original title of the bill; that the bill 
as thus amended by the Assembly thereupon had its third 
reading and was duly passed. Although the message of the 
Governor quoted the original title of the bill, it is perfectly 
plain from the specification in the message that it related to 
the bill bearing the reprint number 68, that the message 
referred to the bill as amended by the Senate and as it was 
then pending in the Assembly. It further appears by the 
journal of the Assembly* that the Speaker, on putting the 
question whether the House would agree to the final passage 
of the bill, stated that the necessity for its immediate passage 
had been certified by the Governor, and that after its final 
passage it was ordered returned to the Senate with a message 
that the Assembly had concurred in its passage with said 
amendments, and that thereafter* the Assembly received the 
bill from the Senate entitled " (No. 60, Assembly Reprint No. 
68, Rec. No. 21)," giving the title as originally amended in the 
Senate, which was merely a notification to the Assembly that 
the Senate had concurred, for the bill was thereupon ordered 
returned to the Senate. It further appears from the journal 
of the Senatef that the Senate, on receipt of the bill from the 
Assembly with said amendments the first time, duly concurred 
therein, and that thereupon another message was received 
from the Governor in due form under the Constitution, 
addressed " To the Legislature," which recited that, it appearing 
to his satisfaction that the public interest required it, he 
certified " to the necessity of the immediate passage of Senate 

* See vol. 4, Appendix II, pp. 99, 114. — [Rep. 
t See vol. 2, Appendix II, pp. 100-102.— [Rap. 



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Peopi^s ex rel. Durham Realty Corp. v. La Fetra. 285 

App. Div.] First Department, December, 1920. 

bill (Int. No. 25, Printed No. 60, Assembly Reprint No. 68)," 
giving the title as amended by the Senate, confining it to cities 
having a population of 1,000,000 or more and cities in a 
county adjoining, and that thereupon the bill, as so amended 
by the Assembly, had its third reading and was put on final 
passage by the President of the Senate who, in putting the 
question, stated that the Governor had certified to the necessity 
of the immediate passage of the bill, and it was thereupon 
passed. It thus appears that the journal of each house shows 
that the members thereof understood that the Governor was 
certifying to the necessity of the immediate passage of the 
bill in its amended form, and that he so intended is evidenced 
by his reference to the Assembly reprint of the bill, which 
included the amendments and evidently was the final reprint 
showing the bill in the precise form in which it was enacted, 
and by his approval thereof. At most, there was an error 
in the original message with respect to the description of the 
title of the bill as it was then before the Senate, but that the 
Governor must have understood that the title had been 
amended is shown by his designation of it by a number which 
identified the bill as it then existed. In addition to this 
record evidence, conflicting affidavits were presented with 
respect to the number of messages sent to the Legislature by 
the Governor concerning this bill, and with respect to the 
action of the Senate and Assembly on the bill before and 
after the receipt of such messages. On the part of the! 
appellant, these affidavits toad to impeach the records to 
which reference has been made, and the affidavits on the 
part of the respondent support the records and plainly show 
that the bill was duly passed. In referring to this evidence 
dehors the record, we do not wish to be understood as indicating 
an opinion that a statute may be impeached by such evidence. 
The general rule is that it is not even competent to examine 
the official records of the legislative bodies in passing upon 
the validity of a statute (Hwd v. Van Alsbyne, 25 Wend. 605; 
Field v. Clark, 143 U. S. 649; Ritchie v. Richards, 14 Utah, 
345; People ex rd. Pvrdy v. Commissioners of Highways of 
Marlborough, 54 N. Y. 276; McCuUoch v. State, 11 Ind. 424; 
MiUer v. State, 3 Ohio St. 475); but where the validity 
of a statute depends upon a particular thing bang shown or 



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286 People ex rel. Durham Realty Corp. v. La Fetra. 

First Department, December, 1030. [VoL 195. 

not shown by the official journals, it is proper to examine 
them. (Happel v. Brethauer, 70 111. 166; Wilkes County v. 
Coler, 180 U. S. 606; Bank v. Commissioners, 116 N. C. 
214; People v. Petrea, 92 N. Y. 128. See, also, Kittinger v. 
Buffalo Traction Co., 160 N. Y. 377.) Our attention has not 
been drawn to any statute requiring that the certification of 
the passage of a bill shall show whether, or not it was printed 
and on the desks of the members in its final form for the 
requisite period before it was passed, or whether that require- 
ment was dispensed with by an emergency message from the 
Governor. It may well be that such certification, if required 
to be made by the presiding officers of the respective houses, 
could not be impeached even by the official records; but if 
there be no such requirement, the mere fact that the Secretary 
of State has certified that the statute was duly enacted does 
not necessarily, I think, preclude an inquiry with respect to 
whether these constitutional provisions were complied with. 
The official journals may be consulted in support of a statute, 
but we are of opinion that in no event could parol evidence 
be received to impeach the official certification by the presiding 
officers or the journals of the respective houses, for that is not 
permitted even in jurisdictions where recourse may be had to 
the official journals. (Taylor v. Beckham, 108 Ky. 278; 
State ex rel. Herron v. Smith, 44 Ohio St. 348; McCuUoch v.. 
State, supra; Eld v. Gorham, 20 Conn. 8; Wise v. Bigger, 
79 Va. 269; People v. Hatch, 33 111. 9.) 

The affidavits tending to impeach the official journals must, 
therefore, be excluded from consideration. We do not deem 
it necessary to examine the statutes, which are not cited, 
with respect to the certification of the passage of laws, or to 
decide whether the official journals may be consulted on this 
point to annul an enactment, for in the case at bar those 
journals do not tend to show a non-compliance with the 
provisions of the Constitution. It will be observed that the 
Constitution does not prescribe how the bill shall be identified 
in the emergency certificate, or that the message shall be 
spread upon the journals of the Assembly and the Senate, or 
that a duplicate shall be delivered to each house. If these con- 
stitutional provisions required a construction that the Legis- 
lature was limited to the passage of the bill in the precise form 



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People ex rel. Durham Realty Corp. v. La Fetra. 287 

App. Div.] First Department, December, 1980. 

in which it was at the moment it received the emergency 
message from the Governor, that is sufficiently shown here 
by the official journals; but I think that would be too narrow 
a construction to place o*n the Constitution and that, at least, 
amendments not materially affecting the purpose and object 
of the bill may be made after the receipt of the message from 
the Governor. It is manifest that the subsequent approval 
of the bill by the Governor is entitled to great weight as 
showing that the bill as it came to him is the bill the immediate 
passage of which he deemed required by the public interest. 
The requirement of the emergency message is to dispense 
with and obviate the delay otherwise required to prevent 
hasty legislation. It appears that this constitutional amend- 
ment as originally proposed did not contain the words requiring 
that the bill should be upon the desks of the members " in 
its final form," and that they were added by amendment. 
(Revised Record of the Constitutional Convention of 1894, 
vol. 1, pp. 887-917.) It will be observed that the constitu- 
tional provisions with reference to the emergency message are 
directed to the bill, and that the provisions of the Constitution 
recognize a distinction between the Mil and the bill in its final 
farm. It is regarded as the same bill from the time of its 
introduction until it passes. If it were held that there could 
be no change in the bill, even to correct a typographical error 
or to clarify its meaning, alter the receipt of the Governor's 
message, the validity of all such legislation would be endangered 
by an inquiry with respect to the time of the receipt of the 
message and the precise form of the bill at that time. If that 
were intended, the Constitution would have required that a 
record of those matters should be made and preserved, but it 
does not. 

It follows that the order should be affirmed, with ten dollars 
costs and disbursements. 

Clarke, P. J., Dowung, Merrell and Greenbaum, JJ., 
concur. 

Order affirmed, with ten dollars costs and disbursements. 



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288 Dklso v. Crucible Steel Co. 



Third Department, February, 1921. [Vol. 195. 



Before State Industrial Commission, Respondent. 

In the Matter of the Claim of Grace Delso and Others, 
Respondents, for Compensation under the Workmen's Com- 
pensation Law on Account of the Death of Peter Delso, 
v. Crucible Steel Company op America, Employer and 
Self-Insurer, Appellant. 

Third Department, February 28, 1921. 

Workmen's Compensation Law — accidental injury or death — 
pneumonia incited by injury to left side of body — when Appel- 
late Division will not interfere with finding* of State Industrial 
Commission. 

While an employee of a steel company was working on a machine for reeling 
and drawing wire, his hand slipped and the left side of his body came in 
contact with a frame or guard and he died four days after the injury of 
" lobar pneumonia" with " contributory myocarditis. 9 ' Held, that there 
was competent evidence that the injury was the inciting cause of the 
pneumonia. 

As there were many circumstances corroborating the opinion of the experts 
who traced the pneumonia to the injury, the Appellate Division is not at 
liberty to interfere with the finding of the State Industrial Commission 
that the injury was the cause of the pneumonia. 

Appeal by the defendant, Crucible Steel Company of 
America, from a decision and award of the State Industrial 
Commission, made on the 10th day of December, 1919. 

Bond, Schoeneck & King [Edward Sehoeneck of counsel], for 
the appellant. 

Charles D. Newton, Attorney-General [E. C. Aiken, Deputy 
Attorney-General, and Bernard L. Shientag of counsel], for the 
respondent State Industrial Commission. 

John P. Hennessey, for the claimants, respondents. 

Van Kirk, J. : 

Peter Delso was employed by the Crucible Steel Company 
of America in its plant in Syracuse. On Wednesday, Sep- 



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Delso v. Crucible Steel Co. 289 

App. Div.] Third Department, February, 1021. 

tember 11, 1918, he was working on a machine for reeling and 
drawing wire. His hands were slippery with oil; his hand 
slipped and the left side of his body came in contact with a 
frame or guard connected with a spool on which the wire was 
wound. Exhibit " 3A" shows a man in the position in which 
Peter Delso stood just before and at the time of his injury, and 
on Exhibit "A" there is a letter "A" marked on the frame 
against which his body struck. A man who saw the accident 
says that his body fell about sax inches. Considering the 
testimony and the photograph and the fact that the man stood 
firmly on his feet, it seems plain that the force of the blow 
which he received was due to the amount of strain upon his 
arm when his hand slipped, and that the foree of the blow 
would be greater the nearer his body was to the frame against 
which it struck when his hand slipped. When he straightened 
up, he swore, but said little, if anything, of his injury that 
afternoon. His work, however, was not active, and much of 
the time he remained seated. The next day, Thursday, he 
complained of sickness and of the injury, was sent for first 
aid, ate no lunch, went to Ins home and soon to his bed. On 
Saturday a physician was called, who diagnosed the case as 
bronchitis. On Sunday the doctor was again called and 
pronounced the case pneumonia. In the afternoon a consul- 
tation of physicians was had; he died Sunday evening at nine 
o'clock, four days after the injury. The death certificate 
states the cause of death to be " lobar pneumonia/' with " con- 
tributory myocarditis." 

In the room in which Delso worked there were strong fumes, 
which irritated the throat. Prior to the injury Delso coughed 
some, suffered some from asthma, but was otherwise strong 
and was able to work regularly. Much was made of a dispute 
whether the pneumonia was on the same side as the injury. 
The attending physician, Dr. Van Lengen, was a very unsatis- 
factory witness. His record was incomplete. In testifying 
he depended upon his memory. The injury was upon the left 
side. At one time the attending physician says the pneumonia 
j was upon the right side and again it was on the same side as 
| the injury. It appears that it is very difficult to determine 
whether pneumonia is affecting both sides, or only one. 
App. Div.— Vol. CXCV. 19 



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290 Delso v. Crucible Steel Co. 

Third Department, February, 1921. [VoL 105. 

Experts were examined, two of whom stated that in their 
opinion the injury was the inciting cause of the pneumonia, 
and other experts, called for the employer, testified to the 
contrary. 

The employer claimed that the " influenza " was the cause 
of death. There was a military camp within a little more 
than one and a half miles from the employer's plant, where 
the influenza developed and later there were many cases in 
the city. But the pneumonia, from which Peter Delso died, 
was not traced with any definiteness to the influenza 
epidemic. 

A reading of all the evidence in the case leaves in the mind 
a strain of uncertainty; but there was competent evidence 
that the injury was the inciting cause of the pneumonia; 
there was a sudden development and a quick termination in 
the progress of the disease after the injury. There are many 
circumstances corroborating the opinion of those experts who 
trace the pneumonia to the injury. The Commission has found 
that the injury was the cause of the pneumonia. This court 
is not at liberty, under the evidence and the rules which govern 
in these cases, to interfere with this finding. 

In its opinion the Commission states that " the decision of 
the Commission now arrived at is in no way influenced or 
affected by any observations made by the deputy commissioner 
as the result of his personal inspection," made by him at the 
plant, without the presence of the employer. (21 State Dept. 
Rep. 590.) 

The award of the Commission should be affirmed. 

Award unanimously affirmed. 



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Newham v. Chile Exploration Co. 291 



App. Div.] Third Department, February, 1981. 



Before State Industrial Commission, Respondent. 

In the Matter of the Claim of Nicholas Newham, Respond- 
ent, for Compensation under the Workmen's Compensa- 
tion Law, v. Chile Exploration Company, Employer and 
Self-Insurer, Appellant. 

Third Department, February 28, 1921. 

Workmen's Compensation Law — Jurisdiction of subject-matter 
may not be given by consent and may be raised first on appeal — 
when expert stevedore employed by shipper to supervise loading 
of cargo not engaged in maritime employment — test as to 
whether employee is in maritime employment. 

The question as to whether jurisdiction of the subject-matter is in the State 
Industrial Commission or in the admiralty courts may not be determined 
by the parties and may be raised first on appeal. 

An expert stevedore, employed by a shipper to observe whether the cargo 
was safely and properly stowed in a steamship, and to report to his 
employer what he observed in these respects, who was injured while 
aiding an employee of a stevedoring company, employed by the captain 
of the steamship, who was having difficulty with a load on his truck on 
the dock, was not in a maritime employment nor was he under a maritime 
contract. 

The true test as to whether or not an employee is in a maritime employment 
or under a maritime contract is the subject-matter of the contract — 
the nature and character of the work to be done. 

John M. Kellogg, P. J., dissents. 

Appeal by the defendant, Chile Exploration Company, 
from an award of the State Industrial Commission, made on or 
about the 27th day of February, 1920. 

Carroll A. Wilson [George 0. Redington and R. C. Kluge- 
scheid of counsel], for the appellant. 

Charles D. Newton, Attorney-General [Bernard L. Shientag 
of counsel], for the respondent State Industrial Commission. 

Wood, Molloy & France [Francis X. Hennessy of counsel], 
for the claimant, respondent. 



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292 Newham v. Chile Exploration Co. 

Third Department, February, 1931. [Vol. 195. 

Van Kirk, J. : 

The Chile Exploration Company had engaged a portion of 
the space in the steamship Maipo to cany freight from New 
York to Valparaiso and other ports on the west coast of South 
America. The ship belonged to the government of Chile. 
The captain of the ship was given the sole right to employ 
the stevedore. The claimant Newham is and was an expert 
stevedore. Arne & Co. did checking and tallying of cargoes 
on the dock for a number of stevedoring companies. Auditore 
& Co. usually did the stevedoring work for the Chile Explora- 
tion Company. The claimant applied to Auditore & Co. for 
work on this ship. Mr. Edwards, of Arne & Co., was in 
the office at the time. He conferred with Mr. Talbot, who had 
charge of affairs for the Chile Exploration Company, and 
the claimant was thereupon put to work, Mr. Edwards giving 
Viitti a note to the chief clerk of Arne & Co. on the dock. 

The checking and tallying of goods for a cargo is no part of 
the stevedoring. Checking and tallying is checking the freight, 
as it is delivered at the dock from trucks or lighters, inspecting 
the packing and noting the number and quantity of the several 
parcels or kinds of freight. The stevedoring work was being 
done by Patane & Co., employed by the captain of the ship. 
Auditore & Co., under the direction of Mr. Edwards, act- 
ing for Mr. Talbot, advanced his wages to Newham. It does 
not clearly appear to whom Auditore & Co. charged these 
advancements. 

The claimant was not employed as a stevedore, nor as a 
checker or tallier. The Chile Exploration Company, because 
it had not employed the stevedores and because it wanted its 
cargo space well filled and the property well stowed to pro- 
tect it against injury, desired an experienced stevedore to 
watch the work as it was done. Claimant was given no 
authority to give orders on the boat, or to take part in the 
stowing of the cargo; he was simply there to observe and report 
to the shipper, so that, if the cargo was not being properly 
stowed, the shipper could take it up with the captain of the 
boat. As to the employment Mr. Talbot says: " The steve- 
dores doing the work, we didn't know how they did the work 
and we wanted the stuff looked out for, to see that none of 
the stuff was broken up or not properly placed in the steamer, 



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Newham v. Chile Exploration Co. 293 

App. Div.] Third Department, February, 1921. 

and I wanted somebody there all the time to have a report 
given to me if goods were broken, or not properly stowed, or 
improperly placed in the steamer, and I wanted somebody 
there all the time that could report it to me so I could take 
it up with the captain of the steamer/' And again: " We 
wanted him to oversee the work done on the steamer, in case 
anything was not going right that he could report it to Mr. 
Edwards and Mr. Edwards could report it to us. * * * 
You see he [Newham] couldn't say anything on the steamer; 
it would have to be taken up by me." Still again: " Q. 
Why was it necessary to have an expert stevedore doing that? 
A. Because it was better to have a man of that sort because 
he would know better how to stow the stuff, for instance see 
that they weren't putting light cases on bottom and heavy 
ones on top, because then they would break, and he would 
see that right away and correct it." Mr. Edwards testifies 
that when he hired Newham he told him "not to interfere 
with the storage of the ship by the other stevedores, unless he 
saw something wrong, and if he did to report to me and then 
I would report to Mr. Talbot." Mr. Edwards has stated that 
Newham had some further duty in the line of helping the 
stevedores, but Edwards was not the agent of the employer. 
The Commission has accepted, we think justifiably, the 
testimony of Mr. Talbot on this subject. 

The claimant gives this account of the maimer of his injury: 
The foreman of the stevedoring company " asked me to shift 
the lighters for him, — will I ' be so kind as to move the lighters 
out of the way? ' ; and I told him, ' Sure.' I started up the 
dock — I was going up the dock — a fellow was coming down 
with a hand truck. Of course, he was standing there with a 
piece of iron, and he was right across the dock, and I started — 
I said to him, ' What's the matter, John? f He says, ' Kindly 
come aboard; it's too heavy.' I said, ' Hold your hands on 
the handles of the truck and when I get around I will straighten 
it out for you.' He was sitting on the truck and freight on 
the center and freight on the side of the dock, and I went to 
go around the truck where the iron was, and just as I got 
around to the end of the plate and started to straighten it up 
he let go his hand." The piece of iron slid across and struck 
his foot. Some time after the foot was amputated. It is not 



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294 Newham v. Chile Exploration Co. 

Third Department, February, 1921. [Vol. 195. 

disputed that the amputation necessarily resulted from the 
injury received. The appellant claims that the evidence does 
not sufficiently show that the Chile Exploration Company 
was the claimant's employer; that Newham was employed by 
Mr. Talbot for the Chile Exploration Company through Mr. 
Edwards. We find sufficient evidence to support the finding 
of the Commission in this respect. 

We turn then to the principal question on this appeal; 
whether jurisdiction of the subject-matter is in the State 
Industrial Commission, or in the admiralty courts. The 
claimant insists that this question is not in this court, because 
of an agreement with the Industrial Commission to the benefit 
of the claimant, made under these circumstances: The 
award had been made against Arne & Co. as the employer. 
Later that award was changed and the Chile Exploration 
Company was held to be the employer. That company, how- 
ever, had not appeared at any hearing and had had no notice 
of the hearing at which the adjudication against it was made. 
It applied for a rehearing, and an agreement was made that 
the weekly payments should be regularly advanced to Newham 
during the pendency of the litigation, and that whichever 
company was finally held to be liable as employer should 
reimburse the party who had made the advancements. It 
was understood and agreed between the Chile Exploration 
Company and the Commission that no question should be 
raised upon the appeal excepting who was the employer. At 
that time the question of jurisdiction was not thought of and 
was not introduced into the case until the decision of the 
United States Supreme Court in Knickerbocker Ice Co. v. 
Stewart (253 U. S. 149). 

The position of the claimant in this respect cannot be 
sustained. There is a clear distinction between the privilege 
of appealing and the jurisdiction of the court over the subject- 
matter in dispute. A party may waive or contract away his 
right to appeal (3 C. J. 662; Townsend v. Masterson, etc., Stone 
Dressing Co., 15 N. Y. 587), and jurisdiction of the person may 
be given by consent; but jurisdiction of the subject-matter 
may not. (Svllivan v. Hudson Navigation Co., 182 App. Div. 
152, 157; Matter of Doey v. Howland Co., 224 N. Y. 30, 38; 
Matter of Caffrey, 52 App. Div. 264; Cooley Const. Lim. [5th 



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Nkwham v. Chile Exploration Co. 295 

App. Div.] Third Department, February, 1991. 

ed] 493.) The question of jurisdiction may be raised first on 
appeal, {Matter of Caffrey, supra; Matter of Livingston, 34 
N. Y. 555, 570.) 

But Newham was not in a maritime employment, nor was 
he under a maritime contract. The true test is the subject- 
matter of the contract — the nature and character of the 
work to be done. (Matter of Doey v. Howland Co., supra, 35.) 
Newham's employer was not the employer of the stevedore. 
The captain of the ship alone had charge of the stevedoring 
and the right to hire. The Chile Exploration Company could 
not employ stevedores for this ship. Newham was not 
employed to do stevedore work, nor checking and tallying. 
His employer was not engaged in a maritime business. He was 
employed to do that which a cargo owner, a shipper, could do 
himself had he the necessary knowledge and experience and 
that in which such shipper (not the shipowner or captain) 
would have the chief interest, namely, to observe whether the 
cargo was safely and properly stowed in order to protect the 
property and use all available cargo space. He was to do 
none of the work and to give no orders; he was simply to 
report to the shipper what he observed in these respects. He 
was not then to do any maritime work, but to report only how 
the maritime work was being done, and this report was to be 
made to his employer, who was not doing maritime work or 
business. When injured Newham was indeed accommodating 
an employee of the stevedore, a stranger in his relations to 
Newham's employer; carrying a message for him; and, while 
so occupied, he volunteered to aid another employee of the 
stevedore, who was having difficulty with a load on his truck 
on the dock. Mr. Talbot, who employed Newham for the 
Chile Exploration Company, testifies to the purposes for 
which he employed him, and he testifies that such work is 
not stevedoring. The fact that Newham was an expert steve- 
dore is hot sufficient on which to find that he was at the time 
doing stevedoring work, or maritime work. When, upon 
receiving the decision in Knickerbocker Ice Co. v. Stewart 
{supra), the Chile Exploration Company made its motion to 
have vacated the former decision, the Industrial Commission, 
in denying the motion, held that Newham was not working 
under a maritime contract and his case was not within maritime 



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296 Newham v, Chile Exploration Co. 

Third Department, February, lfifcl. [Vol. 105. 

jurisdiction. We find no sufficient reason for believing this 
decision was erroneous. 

No other question as to jurisdiction has been raised or 
argued. 

The award should be affirmed. 

All concur, Kiley J., with a memorandum, except John M. 
Kellogg, P. J., who dissents on the authority of Matter of Doey 
v. Howtond Co. (224 N. Y, 30). 

Kiley, J. (concurring) : 

There are two very able briefs in this case; the brief of 
claimant's counsel I regard as the best I have seen on that side 
of the question in any of these cases. I have been unable to 
find that one of the questions here presented has been passed 
upon heretofore in the courts. It is established that a party 
may waive his constitutional rights; also that parties cannot 
confer jurisdiction, not otherwise had, upon a court by stipu- 
lation. It is also established that the question of the lack of 
jurisdiction can be raised at any time during the course of the 
proceeding or action; but it has not been determined whether or 
not a party can, by stipulation, foreclose his right to raise that 
question? If he can, this appellant has, by stipulation, fore- 
closed its right to raise, that question upon this appeal. In the 
view of the case taken by Mr. Justice Van Kirk in his admirable 
opinion the question does not have to be decided on the deter- 
mination of this appeal. He finds that the claimant was not 
engaged in maritime work. That question is decidedly close. 
This man was employed, not in the actual physical labor of 
stevedoring, or to openly superintend or oversee the work of 
stevedoring, but such work as he was employed to do arose 
out of and was incidental to maritime work. If the men 
doing the work of stevedoring placed a small package or article 
toward the bottom of the pile or tier of the goods or commodity 
being packed in the hold of the ship, it was claimants duty 
and his work to report that to his superior, who could have the 
error corrected, so that while claimant did not do the actual 
physical work of changing the location of the article, he was 
the one who caused it to be done. In Sullivan v. Hudson 
Navigation Co. (182 App. Div. 152) Mr. Justice Woodward 



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Scandinavian Impokt-Expoet Co., Inc., i/. Bachhan. 297 

App. Div.] First Department, March, 1981. 

wrote: " It is not the particular kind of work which the person is 
qualified to perform, or the fact that he is performing a particular 
kind of work, which determines the exclusive jurisdiction of a 
court of admiralty; it is the character of the contract — whether 
it has reference to maritime service or maritime transactions." 
Claimant's contract had reference to both maritime service 
and maritime transactions. If we should find that it had, 
then it would be necessary to pass upon the other question 
above suggested, viz., the force of the stipulation. 
I concur in result. 

Award affirmed. 



Scandinavian Import-Export Company, Inc., Respondent, 
v. Frank H. Bachman and Others, Copartners Doing 
Business under the Firm Name and Style of H. F. Bach- 
man & Co., Appellants. 

First Department, Marcfe 4, 1921. 

Corporations — when corporation may not repudiate agreement to 
deal in cotton futures and recover back moneys deposited as 
margins on ground of ultra vires — when purchases of cotton 
future contracts not unlawful — application of rule of Cotton 
Exchange that brokers deal as principals — defense of ultra vires 
not looked upon with favor with respeet to business and trading 
corporations. 

A corporation authorized by its charter to buy and sell any kind of personal 
property and any interest therein may contract with a firm of brokers 
for speculation in -cotton futures and is not entitled to repudiate said 
contract and the transactions thereunder and to recover back money 
deposited as margins solely on the ground that the contract was ultra 
vires. 

The complaint does not show that the plaintiff's agreement with the 
defendants was unlawful or that the transactions had thereunder were 
unlawful. 

Purchases of cotton future contracts do not become unlawful by being 
closed out by a sale by the broker, by direction of the customer, before 
the time for the delivery of the cotton under the contracts and by a settle- 
ment being then made between them on the basis of the difference between 
the purchase and selling price. 



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298 Scandinavian Import-Export Co., In 3., v. Bachman. 

First Department, March, 1921. [Vol 195. 

The roles of the Cotton Exchange under which the brokers deal as principals 
do not preclude the making of a contract between a customer and a broker 
by which, as between them, the broker would become the agent of the 
customer who would be entitled, as between him and the broker, to the 
benefit of the transactions had by the broker as principal with other 
brokers, but for the customer. 

The defense of ultra vires with respect to business and trading corporations 
is not looked upon with favor, especially concerning contracts which have 
been fully executed by the other party. 

Allegations of the complaint aforesaid that the defendants under the contract 

executed orders given by the plaintiff from time to time for the purchase 

and sale of cotton future contracts preclude a recovery by the plaintiff, 

in disregard of the transactions had by the defendants for its account, 

1 of the money it deposited with the defendants. 

Appeal by the defendants, Frank H. Bachman and others, 
from an order of the Supreme Court, made at the New York 
Special Term and entered in the office of the clerk of the county 
of New York on the 23d day of November, 1920, denying their 
motion for an order sustaining their demurrer to the com- 
plaint and for judgment on the pleadings. 

The complaint shows .that the plaintiff is a domestic corpora- 
tion, duly organized and existing under the Business Corpora- 
tions Law; that its certificate of incorporation — designated in 
the complaint as its charter — was filed in the office of the 
Secretary of State on the 8th of August, 1919, and a duplicate 
thereof was filed in the office of the county cierk of New York 
county three days thereafter; that its principal office and place 
of business is at No. 52 Broadway, borough of Manhattan, 
New York city; that the defendants were and are copartners in 
business in the city, county and State of New York under 
the firm name of H. F. Bachman & Co.; that on or about the 
17th of March, 1920, plaintiff and defendants entered into an 
agreement wherein and whereby it was agreed that the plain- 
tiff would open an account with the defendants " for the 
purpose of enabling plaintiff to speculate in cotton futures 
and that defendants would execute plaintiff's orders to buy 
and sell cotton futures for the account of plaintiff; " that 
thereafter, pursuant to said agreement, plaintiff requested 
defendants from time to time to sell and buy cotton future 
contracts and the defendants executed the orders; that pur- 
suant to the agreement and upon the request of the defendants, 



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Scandinavian Import-Export Co., Inc., v. Bachman. 299 

App. Div.] First Department, March, 1921. 

plaintiff paid to the defendants specified sums of money on 
different dates commencing with the 5th day of April, 1920. 
and terminating on the third of August thereafter, aggregating 
$13,153.03; that the sole powers granted to the plaintiff by 
the State of New York are set forth in its certificate of incor- 
poration or charter as follows: 

1 " To do a general business as commission merchants, selling 
Agent and factor under del credere commission or otherwise 
in the maimer and to the same extent as natural persons 
could do. 

" To carry on any or all business as manufacturers, pro- 
ducers, merchants, wholesale and retail, importers and 
exporters, generally without limitation as to class of products 
and merchandise, and to manufacture, produce, adapt, prepare, 
buy, sell and otherwise deal in any materials, articles or things 
required in connection with or incidental to the manufacture, 
production and dealing in such products. 

" To make and enter into all manner and kinds of contracts, 
agreements and obligations by or with any person or persons, 
corporation or corporations for the purchasing, acquiring, 
holding, manufacturing and selling or otherwise dealing in, 
either as principal or agent, upon commission or otherwise, 
any and all kinds of goods, articles or personal property, 
whatsoever, and generally with full power to perform any and 
all acts connected therewith or arising therefrom, or incidental 
thereto, and any and all acts proper or necessary for the pur- 
pose of the business. 

"To carry on and undertake any business, undertaking, 
transaction or operation commonly carried on or undertaken 
by merchants, commission men, factors, brokers, importers and 
exporters and manufacturers' agents. 

" subject to the limitations and restrictions imposed by 

law: 
" To purchase, lease or otherwise acquire and to hold, own, 
sell or dispose of real and personal property of all kinds, and 
in particular lands, buildings, business concerns and under- 
takings, shares of stock, mortgages, bonds, debentures and 
other securities, merchandise, book debts and claims, trade- 
marks, trade names, patents and patent rights, copyrights 
and any interest in real or personal property; 



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300 Scandinavian Import-Expobt Co., Inc., v. Bachman. 

First Department, March, 1921. [Vol. 196. 

" To borrow money for its corporate purposes and to make, 
accept, endorse, execute and issue promissory notes, bills of 
exchange, bonds, debentures or other obligations from time to 
time, for the purchase of property or for any purpose in or 
about the business of the company, and, if deemed proper, to 
secure the payment of any such obligations by mortgage, 
pledge, deed of trust or otherwise; 

" To acquire, and take over as a going concern, and there- 
after to carry on the business of any person, firm or corporation 
engaged in any business which this corporation is authorized 
to carry on, and in connection therewith, to acquire the good 
will and all or any of the assets and to assume or otherwise 
provide for all or any of the liabilities of any such business; 

" To sell, improve, manage, develop, lease, mortgage, dis- 
pose of or otherwise turn to account or deal with all or any 
part of the property of the company; 

" To carry on business at any place or places within the 
jurisdiction of the United States, and in any and all foreign 
countries, and to purchase, hold, mortgage, convey, lease or 
otherwise dispose of and deal with real and personal property, 
at any such place or places; 

" To do all and everything necessary, suitable or proper for 
the accomplishment of any of the purposes, the attainment of 
any of the objects or the furtherance of any of the powers 
hereinbefore set forth, either alone or in connection with other 
corporations, firms or individuals and either as principals or 
agents, and to do every other act or acts, thing or things, 
incidental or appurtenant to or growing out of or connected 
with the aforesaid objects, purposes or powers, or any of 
them." 

It is further alleged that the agreement and the transactions 
had thereunder were vttra vires and were not authorized by, 
were contrary to, in direct violation of, and extraneous to the 
charter of the plaintiff and that this was well known to the 
defendants and that the plaintiff never received anything of 
value from the defendants under said agreement and did not 
derive any benefit or advantage " from the aforesaid trans- 
actions with defendants." Judgment is demanded for the sum 
of $13,153.06, together with interest and costs. The sole 
ground of the demurrer is that it appears upon the face of the 



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Scandinavian Import-Export Co., Inc., r. Bachman. 301 

App. Div.] First Department, March, 1921. 

complaint that it does not state facts sufficient to constitute 
a cause of action and defendants demand judgment dismissing 
the complaint, with costs. 

Edward A. Alexander of counsel [Frank Weinstein with him 
on the brief], for the appellants. 

Ten Eyck R. Beardsley, for the respondent. 

Latjghlin, J. : 

The complaint was framed and the appeal has been argued 
on the theory that the certificate of incorporation is no broader 
than authorized and, therefore, since those powers apparently 
authorize any lawful business, with certain exceptions not 
applicable here (Business Corp. Law, § 2; * Jacobs v. Manaton 
R. I. Corp., 212 N. Y. 48), we shall so assume. 

It will be observed from the statement of facts that the 
certificate of incorporation of the plaintiff does not indicate 
a primary purpose or purposes of its organization and specifies 
many powers and also confers upon it very general and com- 
prehensive powers under which it may embark in a variety 
of enterprises without even limitation as to territory. It 
was authorized, among other things, to do a general business 
as a commission merchant, selling agent, and factor, under 
del credere commissions or otherwise in the manner and to the 
same extent as a natural person; to carry on business as a 
manufacturer, producer, merchant, and wholesale and retail 
importer and exporter of any products and merchandise; 
to make and enter into " all manner and kinds of contracts, 
agreements and obligations " for purchasing, acquiring, hold- 
ing, manufacturing, selling or otherwise dealing in all kinds of 
goods, articles, or personal property, either as principal or 
as agent, and subject to the limitations and restrictions 
imposed by law to purchase, lease or otherwise acquire, hold, 
sell, convey, and dispose of real and personal property, includ- 
ing shares of stock and other securities and any interest in 
real or personal property, and to borrow money for its corporate 
purposes and to accept, indorse, execute and issue promissory 
notes and other obligations for the purchase of property or 
for any other purpose in or about the business of the company, 

* Amd. by Laws of 1909, chap. 484.— [Rep. 



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302 Scandinavian Import-Export Co., Inc., v. Bachman. 

First Department, March, 1921. [Vol 195. 

and to secure payment of such obligations by mortgage, pledge, 
deed of trust, or otherwise, and to carry on business at any 
place or places within the jurisdiction of the United States 
and in foreign countries, and to purchase, hold, mortgage, 
lease or otherwise dispose of and deal in real estate and personal 
property at any such place or places; to do all things necessary, 
suitable or proper for the accomplishment of any of the pur- 
poses, the attainment of any of the objects, or the furtherance 
of any of the powers set forth in the certificate of incorporation, 
either alone or in connection with others and either as principal 
or agent, and to do every other act or thing incidental or 
appertaining to and growing out of or connected with " the 
aforesaid objects, purposes or powers, or any of them." 

So far as appears, this was the only business in which the 
plaintiff engaged and after inducing the brokers to loan and 
advance the funds required over and above the margins 
deposited, it has repudiated all the transactions and claims 
the right to recover back the money deposited as margins. 

It is to be borne in mind that it is the corporation itself 
which is attempting to repudiate its own contract duly author- 
ized if the board of directors and stockholders could authorize 
it, and the purchases and sales of cotton future contracts 
which the defendants made for its account. The stock- 
holders of the plaintiff are not directly before the court and 
it is unnecessary to express any opinion with respect to whether, 
after becoming stockholders of a corporation with such general 
powers, they might in any circumstances be entitled to enjoin 
the corporation from investing its funds in speculative prices. 
The points presented for decision relate only to the power of 
the corporation and its right to repudiate its own contract 
and transactions had under it and to recover back the moneys 
it deposited with the defendants solely on the ground that 
the contract and transactions which it assumed to authorize 
were ultra vires. I am of opinion that the authority conferred 
to buy and sell any kind of personal property and any interest 
therein authorized the corporation to deal in cotton and to buy 
and to sell it and to buy contracts for the future delivery of 
the cotton and to sell the same, which is the business it con- 
tracted to do and transacted with the defendants under the 
contract. The company was not authorized to make unlawful 



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Scandinavian Import-Export Co., Inc., v. Bachman. 303 

App. Div.] First Department, March, 1921. 

contracts {Medlin Milling Co. v. Moffatt Commission Co., 
218 Fed. Rep. 686) ; but the facts alleged do not show that its 
agreement with the defendants was unlawful or that the trans- 
actions had thereunder were unlawful. If it had been alleged 
that the plaintiff did not intend to take the cotton under the 
contracts and that it was so understood between the plaintiff 
and the defendants and that it was not to accept delivery of 
any of the cotton and that there were to be no actual pur- 
chases or sales but that settlements were to be made between 
the plaintiff and the defendants solely on differences by which 
is meant that if the difference between the market price of 
a contract purchased for the plaintiff and the price at which 
it was sold was in favor of the customer such difference was 
to be paid to the customer by the brokers, and if against the 
customer it was to be paid by it to the brokers, the agreement 
would constitute a gambling contract and be unlawful; but 
where that is not the intention of the customer and the under- 
standing between him and the broker, purchases of cotton 
future contracts do not become unlawful by being closed out 
by a sale by the broker by direction of the customer before the 
time for the delivery of the cotton under the contracts and by 
a settlement being then made between them on the basis of 
the differences between the purchase and selling prices. (Hurd 
v. Taylor, 181 N. Y. 231; Springs v. James, 137 App. Div. 
110; affd., 202 N. Y. 603; Smith v. Craig, 211 id. 456; Medlin 
Milling Co. v. Moffatt' Commission Co., 218 Fed. Rep. 686; 
14 Am. & Eng. Ency. of Law [2d ed.], 605-307; 26 id. 1060; 
20 Cyc. 926-931; Dos Passos Stock & Stock B. 405, 505, 506, 
568, 572, 575-577, 582.) The allegations of the complaint fall 
far short of showing that the agreement was illegal within the 
rule stated. 

Counsel for the respondent claims that under the rules of 
the Cotton Exchange, the brokers deal as principals; and that, 
therefore, defendants were not the agents of the plaintiff and 
that it must be deemed to have dealt with them as principals, 
and that since it is alleged that the plaintiff never received 
anything from the defendants, it is entitled to recover the 
money deposited with them. The rules of the Cotton Exchange 
are not pleaded, but very likely they so provide, for it appears 
from reported decisions that thereunder the brokers as between 



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304 Scandinavian Import-Export Co., Inc., v. Bachman. 

First Department, March, 1921. [Vol. 195. 

themselves become principals (Jemison v. C. S. Bank, 122 
N. Y. 135) ; but such a rule would not preclude the making of 
a contract between a customer and a broker by which as 
between them the broker would become the agent of the 
customer who would be entitled as between him and the broker 
to the benefit of the transactions had by the broker as principal 
with other brokers but for the customer. 

It is, of course, well settled that a trustee may not speculate 
with trust funds (Jemison v. C. S. Bank, supra; Hart v. 
Goadby, 138 App. Div. 160), and that principle of law was 
applied in Jemison v. C. S. Bank (supra), wherein it was 
held that a savings bank, which was authorized to buy and 
sell government stocks and other securities, was not authorized 
to speculate in cotton futures; but the decision was predicated 
on the law regulating the securities in which such banks may 
invest the funds deposited with them and on the insecurity 
to the depositors that would result if such banks were allowed 
to speculate with the funds deposited with them. The courts 
in deciding whether acts are ultra vires and the effect thereof, 
recognize and apply a distinction between corporations, the 
purposes of which are, or largely are, of a fiduciary nature 
and business and trading corporations; and with respect to 
business and trading corporations the defense of ultra vires 
is not looked upon with favor, and especially, as here, con- 
cerning contracts which have been fully executed by the other 
party. (Gause v. Commonwealth Trust Co., 196 N. Y. 134, 
153-155; Whitney Arms Co. v. Barlow, 63 id. 62; Woodruff v. 
Erie R. Co., 93 id. 609; Keating v. American Brewing Co., 
62 App. Div. 501; V ought v. Eastern Building & Loan Assn., 
172 N. Y. 508; Wormser v. Metropolitan Street R. Co., 184 
id. 83-90; Bath Gas Light Co. v. Claffy, 151 id. 24; White 
Corp. [8th ed.] 35.) 

The eomplaint does not show the state of the account 
between the plaintiff and the defendants, but it alleges that 
the defendants under the contract executed orders given by 
the plaintiff from time to time for the purchase and sale of 
cotton future contracts. These allegations preclude a recovery 
by the plaintiff, in disregard of the transactions had by the 
defendants for its account, of the money it deposited with 
the defendants. 



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Krasmbr v. World Wide Trading Oo., Inc. 305 

App. Div.] First Department, March, 1911. 

It follows that the order should be reversed, with ten dollars 
costs and disbursements, and the demurrer sustained and the 
complaint dismissed, with ten dollars costs. 

Clarke, P. J., Smith, Page and Merrell, JJ., concur. 

Order reversed, with ten dollars costs and disbursements, 
motion granted, demurrer sustained and complaint dismissed, 
with ten dollars costs. 



Frederick J. Kraemer, Appellant, v. World Wide Trading 
Company, Inc., Respondent. 

First Department^ March 4, 1021. 

Pleadings — determination of sufflcieney of complaint in equity on 
demurrer aad after issue joined .by answer and oause brought to 
trial as suit in equity — Joint adventures — agreement to divide 
commissions received from third party — receipt of commissions 
in trust as agent of other party to agreement — accounting. 

On demurrer the sufficiency of a complaint framed in equity depends upon 
whether or not it shows an equitable cause of action, but if issue has been 
joined by answer and the oause brought to trial as a suit in equity the 
complaint cannot be dismissed on the ground that plaintiff is not entitled 
to equitable relief provided it shows a cause of action at law. 

A complaint in an action for an accounting showing that the plaintiff has 
a oause of action against the defendant for a balance on account of one- 
half the commissions received by it from a foreign corporation for negotiat- 
ing the purchase by it of steamships, examined and held, that since the 
plaintiff took the risk of receiving nothing for his services and each of the 
parties was to receive one-half of any commissions paid therefor, a joint 
adventure is shown in which each party was to and did render services 
in earning the commissions, which, by the agreement, were to be paid by 
the foreign corporation to the defendant for himself and the plaintiff, and 
that a fiduciary relation existed between them under which the defendant 
received the commissions in trust as the agent of the plaintiff to the extent 
of one-half, which it was its duty to pay over to the plaintiff as received, 
and, therefore, the plaintiff is entitled to an accounting. 

Dowuno, J., dissents, with opinion. 

Appeal by the plaintiff, Frederick J. Kraemer, from an 
order of the Supreme Court, made at the New York Special 
Term and entered in the office of the clerk of the county of 
App. Div.— Vol. CXCV. 20 



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I 



I 

306 Kraemer v. World Wroa Trading Co., Inc. 

First Department, March, 19*1. [Vol. 195. 

New York on the 5th day of October, 1920, denying his 
motion for judgment on the pleadings and granting defendant's 
counter motion for judgment sustaining its demurrer to the 
complaint for insufficiency and dismissing the complaint. 

Lawrence E. Brown of counsel [Bullowa <fc BvUowa, attorneys], 
for the appellant. 

Frank B. York of counsel [York & York, attorneys], for the 
respondent. 

Laughlin, J.: 

The complaint shows that the plaintiff has a cause of action 
against the defendant for a balance on account of one-half 
the commissions received by it from the Empresa Naviera de 
Cuba, a foreign corporation, for negotiating the purchase by 
it of four steamships. It is, however, framed in equity and, 
therefore, on demurrer the sufficiency thereof depends upon 
whether or not it shows an equitable cause of action (Gosselin 
Corporation v. Mario TappareUifu Pietro, Inc., 191 App. Div. 
580; Spring v. Fidelity Mutual Life Ins. Co., 183 id. 134; Con- 
solidated Rubber Tire Co. v. Firestone Tire & R. Co., 135 id. 805; 
Low v. Swartwout, 171 id. 725; Logan v. Fidelity- Phenix Fire 
Ins. Co., 187 id. 153); but if issue had been joined by answer 
and the cause brought to trial as a suit in equity the complaint 
could not be dismissed on the ground that the plaintiff is not 
entitled to equitable relief provided it shows a cause of action 
at law, and in that event it would be transferred to the jury 
calendar. (Thomas v. Schumacher, 17 App. Div. 441; Glyn v. 
Title Guarantee & Trust Company, 132 id. 859; Everett v. De Fonr 
taine, 78 id. 219; Perrin v. Smith, 135 id. 127.) The plaintiff 
alleges that on or about the 20th of November, 1919, he and 
the defendant entered into a contract by which the latter 
agreed to pay to him " one-half of a commission of $10,000, 
when and as received by it " from said Empresa Naviera de 
Cuba, on the purchase by it of the steamship St. Paul and 
that the plaintiff and defendant thereafter co-operated in 
securing the sale of said steamship to the foreign corporation, 
which paid the defendant the sum of $10,000 " as a commission 
for the services of the plaintiff and the defendant " in 



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Ebaemer v. World Wide Trading Co., Inc. 307 

App. Div.] First Department, March, 1921. 

connection with the sale of the steamship; that in the month 
of December, 1919, it was agreed between the parties " that 
in consideration of the assistance to be rendered by the plaintiff 
to the defendant in procuring steamships'' for said foreign 
corporation " defendant would pay to the plaintiff one-half 
of any commission which might be paid to it " by said foreign 
corporation for negotiating the purchase of steamships by 
it in the United States and the defendant agreed to pay 
" such one-half of said commission " to the plaintiff immediately 
upon the receipt of the same by it, and that thereafter plaintiff 
and the defendant procured the purchase by said foreign 
corporation of three other steamships pursuant bo an agree- 
ment by the foreign corporation " that it would pay to the 
defendant for the services of the plaintiff and the defendant 
rendered in or about the purchase of said steamers, five 
per cent of the purchase price thereof; " that thereafter and 
prior to the commencement of the action, the foreign corpora- 
tion paid to the defendant the commission due for the services 
of the plaintiff and defendant in and about the purchase of 
said steamships " and the defendant received such amounts 
for the account of the plaintiff and the defendant under said 
agreement with the plaintiff that it would pay one-half 
thereof to this plaintiff; " that the defendant has refused and 
still refuses to account to the plaintiff for any of the moneys 
so received by it from said foreign corporation for its services 
and the services of the plaintiff or to pay over to the plaintiff 
any part thereof excepting the sum of $8,668.86, and that the 
defendant holds a large sum of money which it has received 
from said foreign corporation for the services of the plaintiff 
and of the defendant, " one-half of which is the property of 
this plaintiff," and has refused to account for or to pay the 
same over to the plaintiff. Judgment is demanded for an 
accounting between the plaintiff and the defendant concerning 
all moneys received by the defendant from said foreign 
corporation for the services of the plaintiff and the defendant 
in connection with the purchase by the foreign corporation 
of the four steamships and that it be decreed that the defendant 
pay over to the plaintiff such amount as shall be ascertained 
to be due to him from the defendant and for other and further 
relief, with costs. 



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308 Kraembr v. Worij> Wide Trading Co., Inc. 

First Department, March, 1921. [Vol. 195. 

The point presented by the appeal is whether these allega- 
tions show a joint adventure entitling plaintiff to an accounting 
or whether they should be construed as showing merely an 
employment of the plaintiff by the defendant with an obligation 
to pay therefor an amount equal to one-half the commissions 
for which he has only an action at law. The law by which 
the case is to be decided is well settled. The only difficulty 
is in determining from the facts to which class of cases a 
particular case belongs. I regard this as a border case, but 
since plaintiff took the risk of receiving nothing for his services 
and each of the parties was to receive one-half of any com- 
missions paid therefor, I am of opinion that a joint adventure 
is shown in which each of the parties was to and did render 
services in earning the commissions, which, by the agreement, 
were to be paid by the foreign corporation to the defendant 
for himself and the plaintiff, and that a fiduciary relation 
existed between them under which the defendant received 
the commissions in trust as the agent of the plaintiff to the 
extent of one-half, which it was its duty to pay over to the 
plaintiff as received. If the allegations of the complaint are 
susceptible of this construction, as I think they are, the right 
to an accounting is clear. (May v. Hettrick Brothers Co., 
181 App. Div. 3; affd., 226 N. Y. 580; Valdes v. Larrinaga, 
233 U. S. 705; Marvin v. Brooks, 94 N. Y. 71; MarsUm v. 
Gould, 69 id. 220; Franken-Karch Corp. v. Castriotis, 195 App, 
Div. 529; China & Japan Trading Co., Ltd., v. Provand, 155 
id. 171; HUl v. Curtis, 154 id. 662; Freeman v. Miller, 157 id. " 
715, 719; Bvice v. Jones, 106 id. 547; Peirce v. McDonald, 168 
id. 47, 56; Frethey v. Durant, 24 id. 58; Jordan v. UnderhiU, 
91 id. 124; Weld<m v. Broum, 84 id. 482; 89 id. 586; Hathaway 
v. Clendming Co., 135 id. 407; Rice v. Peters, 128 id. 776; 
StoUer v. Frankm, 171 id. 327.) 

It follows that the order should be reversed, with ten dollars 
costs and disbursements, and defendant's motion denied and 
plaintiff's motion granted, with ten dollars costs, but with 
leave to defendant to withdraw the demurrer and answer on 
payment of the costs of the appeal and motion. 

Clarke, P. J., Merrell and Greenbaxjm, JJ., concur; 
Dowling, J., dissents. 



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Kraemer v. World Wide Trading Co., Inc. 309 

App. Div.] First Department, March, 1991. 

Dowuno, J. (dissenting): 
The plaintiff alleges in his complaint as follows: 
" 2. That, heretofore and on or about the 20th day of 
November, 1919, the defendant entered into an agreement 
with the plaintiff under the terms of which the defendant 
agreed to pay to the plaintiff one-half of a commission of 
$10,000, when and as received by it from Empresa Naviera de 
Cuba, a foreign corporation, on the purchase by said Empresa 
Naviera de Cuba of the steamship ' St: Paul ' and thereafter 
and in the month of December, 1919, it was further agreed 
by and between the plaintiff and the defendant that in con- 
sideration of the assistance to be rendered by the plaintiff 
to the defendant in procuring steamships for said Empresa 
Naviera de Cuba, the defendant would pay to the plaintiff 
one-half of any commission which might be paid to it by 
Empresa Naviera de Cuba for purchasing steamships in the 
United States of America, such one-half of said commission 
to be paid to the plaintiff immediately upon receipt of the 
same." 

He then alleges that plaintiff and defendant co-operated in 
securing the sale of the steamship St. Paul to Empresa Naviera 
de Cuba, which paid defendant the sum of $10,000 as a com- 
mission for the services of plaintiff and defendant. He further 
alleges that in November and December, 1919, and January, 
1920, plaintiff and defendant procured the purchase by the. 
same company of the steamships Minneapolis f Yadkin and 
WaUmga, under an agreement by said Company that it would 
pay defendant for its services and those of plaintiff five 
per cent of the purchase price thereof; that said company 
has paid to defendant the commissions due under said agree- 
ment for the purchase of said three steamers, " and the 
defendant received such amounts for the account of the 
plaintiff and the defendant under said agreement with the 
plaintiff that it would pay one-half thereof to this plaintiff/' 
and plaintiff demands judgment: First That an accounting 
be had between the plaintiff and the defendant of all amounts 
received by the defendant from the Empresa Naviera de 
Cuba for the services of the plaintiff and the defendant in 
connection with the purchase of the steamships St. Paul, 
Minneapolis, Yadkin and Watauga. Second. That upon corn- 



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310 Swenson v. Trowbridge. 

First Department, March, 1921. [Vol. 195. 

pletion of said accounting the defendant be decreed to pay 
over to this plaintiff such sums as shall be ascertained to be 
due to him from said defendant. 

The complaint is framed solely in equity and I can find no 
equitable cause of action stated therein. 

I am of the opinion that it set forth no joint ownership of 
a fund with a right to an accounting, nor a partnership in 
said fund, but an agreement on the part of plaintiff to render 
services for defendant* in connection with the purchase of 
steamships, for which defendant bound itself to pay plaintiff 
one-half of any commissions it received in the premises. I 
think that only an action at law is set forth, entitling plaintiff 
to recover one-half of the amount received by defendant 
under the agreement between them. 

The order appealed from should, therefore, be affirmed, with 
ten dollars costs and disbursements. 

Order reversed, with ten dollars costs and disbursements, 
defendant's motion denied and plaintiff's motion granted, 
with ten dollars costs, with leave to defendant to withdraw 
demurrer and to answer on payment of said costs. 



Joseph M. Swenson, Appellant, v. Elmer E. Trowbridge 
and Harold Bolster, Respondents. 

First Department, March 4, 1021. 

New trial — power of court to entertain or grant motion for, where 
Jury is waived and formal decision is rendered — Code of Civil 
Procedure, section 999, construed and applied. 

A court has no authority to entertain or grant a motion for a new trial 
under section 999 of the Code of Civil Procedure, where a jury has been 
waived, the cause tried by the court and a formal decision made upon 
which judgment was entered. 

Appeal by the plaintiff, Joseph M. Swenson, from an order 
of the Supreme Court, made at the New York Trial Term 
and entered in the office of the clerk of the county of New 
York on the 10th day of November, 1920, granting defendants' 
motion to set aside the verdict and for a new trial made upon 
the minutes. 



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Swenson v. Trowbridge. 31 1 

App. Div.] First Department, March, 1021. 

Neil P. Cullom of counsel [CidUm & Rinke, attorneys], for 
the appellant. 

John Hall Jones, for the respondent Trowbridge. 

Laughun, J.: 

The action is to recover on two promissory notes made 
by the defendants and payable in Nebraska. Defendants 
answered jointly, pleading as partial defenses that the notes 
were made and delivered pursuant to a corrupt and usurious 
agreement and that, therefore, the plaintiff was not entitled 
under the law of Nebraska to recover the amount claimed. 

The record shows that when the cause was reached for trial 
a jury was waived and that the issues were thereupon tried 
by the court without a jury. Counsel for the plaintiff opened, 
stating the issues as presented by the pleadings; and counsel 
for the defendants in opening claimed a statement of facts 
somewhat different from those pleaded, in that he claimed 
that the defendants were partners and that one of them had 
paid one-half of the amount due on the notes and the other 
had paid a proportionate amount of the balance and had 
secured the discontinuance of this action as to him, and that 
under the law of Nebraska this released both makers, and 
also that the plaintiff was not the real party in interest, but 
brought the action for the purpose of giving one of the defend- 
ants a right of action over against the other, his copartner, 
to get back the money on a judgment in favor of the 
plaintiff, to whom he had paid it. Counsel for the plaintiff 
denied that the facts were as so claimed. Counsel for the 
plaintiff then took the stand and offered in evidence a 
computation of the balance due according to the law of 
Nebraska. On his cross-examination it was shown that 
$4,000 had been paid on one of the notes by the defendant 
Bolster and that a consent to a discontinuance^ this action 
as against him had been signed by the plaintiff and was held 
by the witness. Defendant then undertook, but without 
success, to show that the notes were usurious in that they 
were given for a loan and that another note for $3,300 was 
given by the makers to the plaintiff, which it was claimed 
rested on the same consideration; but it was shown that it 
was given for a separate and independent consideration. A 



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312 S wbnson v. Trowbridge. 

First Departments March, 1991. [Vol 196. 

Nebraska decision (Scqfield v. Clark , 48 Neb. 711) to the 
effect that a release of one joint obligor releases both was then 
offered in evidence. Defendants were precluded from showing 
that within a year plaintiff had stated in a conversation with 
a third party that he had assigned his interest in this action. 
This is the substance of the only evidence offered by either 
party, and at its close the record shows that counsel for 
the plaintiff moved for a judgment for the balance due on the 
notes and the motion was granted, and the defendants excepted 
and moved for a new trial on the minutes on all the grounds 
specified in section 999 of the Code of Civil Procedure. The 
court, without objection on the part of the plaintiff, entertained 
the motion and afforded defendants an opportunity to obtain 
the stenographer's minutes but announced that no stay would 
be granted. The record further shows that the issues were 
tried on the 15th of October, 1920; that a formal decision 
containing findings of fact and conclusions of law and author- 
izing the entry of judgment in favor of the plaintiff for the 
balance due on the notes was signed on the twenty-second 
of October and that judgment was entered thereon the fol- 
lowing day, and the order granting the motion for a new trial 
was made on the tenth of November thereafter. The order 
granting a new trial seems to have been made under a mis- 
apprehension, for it purports to set aside a verdict and to 
grant the new trial on all .the grounds specified in section 999 
of the Code of Civil Procedure upon condition that the 
defendant Trowbridge pay the taxable costs and disbursements 
in the action and stipulate that the judgment entered should 
stand as security, and in default thereof the motion was to 
be deemed denied. The memorandum opinion of the learned 
trial court indicates that the court was of the opinion that 
the defendant Trowbridge had defenses which were not 
properly pleaded and that he should be afforded an oppor- 
tunity to procure the amendment of his pleading and the 
benefit of testimony in support thereof. 

The only points made in behalf of the appellant are that 
the granting of the order was an improper exercise of the 
power of the court under section 999 of the Code of Civil 
Procedure in that the order was made on the theory of surprise, 
which is not a ground for such a motion, and that the consent 



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Bellas Hess & Co., Inc., v. Alexander & Co., Inc. 313 

App. Div.] First Department, March, 1931. 

to the discontinuance of the action as against the defendant 
Bolster did not constitute a release of the causes of action 
as against him or discharge the defendants. I deem it 
unnecessary to discuss these points for it is evident that the 
court, through the attitude of the attorneys for both parties 
and owing to the fact that the trial was had and the motion 
was made in a jury part, entertained and granted the motion 
on the erroneous theory that the cause was to be tried by 
the court as if a jury had been present and that a verdict had 
been directed, which was not the case. A jury having been 
waived and the cause having been tried by the court and a 
formal decision having been made upon which judgment was 
entered, the provisions of section 999 were inapplicable and 
the court was without authority to entertain or grant a motion 
for a new trial thereunder. (Rosenquest v. Canary, 27 App. 
Div. 30; Knight v. Sacked & Wilhelms Lith. Co., 31 Abb. 
N. C. 373; affd., without discussion of this point, 141 N. Y. 
404.) 

It follows that the order should be reversed, but since the 
reversal is on a ground not presented to the trial court or taken 
here by the appellant, without costs, and motion denied, 
without costs. 

Clarke, P. J., Smith, Page and Mebbell, JJ., concur. 

Order reversed, without costs, and motion denied, without 
costs. 



Bellas Hess & Co., Inc., Appellant, v. Alexander & Co., 
Inc., Respondent. 

First Department, March 4, 1921. 

Sales — action for breach of contract for sale and manufacture 
of goods — evidence establishing prima facie case of meeting of 
minds of parties on oomplete contract — condition in written 
contract that goods to be manufactured if material obtainable 
from mill — oral waiver of condition by seller having knowledge 
of actual fulfillment of condition — waiver as question for jury. 

In an action for the breach of an alleged written agreement for the manu- 
facture and sale of goods, evidence held, to establish a prima facie case 
of the meeting of the minds of the parties on a complete contract. 



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314 Bellas Hess & Co., Inc., v. Alexander & Co., Inc. 



First Department, March; 1921. [Vol. 195. 

A condition in a written contract for the sale of goods to be manufactured 
from material which is to be obtained by the seller, to the effect that 
the goods will be delivered in accordance with the terms of the contract 
if the material entering into the manufactured product can be procured 
from the mill, may be waived by parol where the seller knows the condition 
has been in fact fulfilled. 

In such case the question whether such condition has been waived or aban- 
doned by the seller, by statements and representations as to ability to 
perform the contract, is for the determination of the jury. 

Appeal by the plaintiff, Bellas Hess & Co., Inc., from a 
judgment of the Supreme Court in favor of the defendant, 
entered in the office of the clerk of the comity of New York 
on the 19th day of January, 1920, dismissing the complaint 
at the close of the plaintiff's case. 

Herman B. Goodstein, attorney [Thomas J. Kavanagh with 
him on the brief], for the appellant. 

Mark E. Goldberg, attorney [Samuel S. Goldberg of counsel], 
for the respondent. 

Dowling, J.: 

This action is brought to recover the sum of $2,250 as 
damages for the breach of a written agreement made on 
May 27, 1919, whereby defendant agreed to manufacture 
and deliver to plaintiff on or before July 15, 1919, seventy-five 
dozen of men's silk shirts at the price of forty-eight dollars 
per dozen. The answer, after denying most of the allegations 
of the complaint, set up the Statute of Frauds,* in that the 
agreement was for a sale of goods for the price of more than 
fifty dollars, and that the agreement was not in writing nor 
was any delivery of any part of the goods made nor any 
payment made on account thereof. 

The proof established that the order for the goods in 
question was solicited by defendant's salesman. Plaintiff sent 
a written order to defendant, dated May 23, 1919, for seventy- 
five dozen satin striped habutai silk shirts " as selected," the 
quantities in each size from fourteen to seventeen being speci- 

*8ee Pers. Prop. Law, § 85, as added by Laws of 1911, chap. 571. — 
[Rep. 



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Bellas Hess & Co., Inc., v. Alexander & Co., Inc. 315 

App. Div.] First Department, March, 1921. 

fied, the price being forty-eight dollars per dozen. The order 
contained these provisions, among others: " Our Hangers in 
Neck — Box fronts." Replying thereto, defendant wrote under 
date of May twenty-seventh: 

" We are in receipt of your order #64909 for 75 dozen 
silk shirts at $48.00 per dozen, for which please accept our 
thanks. 

" We regret to advise that we cannot give you same with 
a box front, as these shirts are in process of making with the 
plain centers. 

11 Furthermore, we are accepting this order with the condition 
that we get deliveries from our silk mill, and assure you that 
we will do all in our power to deliver this order as near complete 
as possible." 

A day or two after the date of this letter, Arthur J. Ridley, 
plaintiff's manager, called at defendant's office and there saw 
defendant's vice-president, Alexander, in reference to the letter 
and the two statements therein contained. Alexander said 
the shirts were in process of making. Ridley said: " Further 
down in the letter you state that the delivery is subject to 
no delivery of piece goods," and asked: " What do you mean 
by those two statements? * * * What I want to know is, 
are we going to get these shirts or not? " Alexander replied, 
"You will get those shirts." Alexander further said: " Some 
of these shirts will be made with, plain centers," and Ridley 
replied: "That doesn't make a bit of difference to us. We 
will take them either way," and Alexander remarked: " Well, 
I thought so." 

A letter was offered in evidence by defendant, signed by 
plaintiff, dated May twenty-ninth, in which it was said: " We 
do not quite understand your letter of May 27th. In one 
paragraph you state the shirts are in process of making, and 
in the next paragraph you say we are accepting this order 
with the conditions that we get deliveries from the silk mill. 
Your salesman stated to us positively that you had enough 
goods on hand for 100 doz. Perhaps it would be best to 
have him call on us Monday." This letter Ridley admitted 
writing, but was uncertain when it was mailed. He admitted 
that he had written the letter before he had called on Alexan- 
der and that no salesman had visited him. But there is no 



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316 Bellas Hess & Co., Inc., v. Alexander & Co., Ino 

First Department, March, 1921. [Vol. 195. 

denial of his positive testimony as to his conversation with 
Alexander. 

At the close of plaintiff's case the trial court granted a 
motion to dismiss the complaint on the ground that " no 
enforceable contract is shown and that there was not that 
meeting of the minds of the parties required by law to constitute 
a complete contract." 

The defendant contends that the minds of the parties never 
met on a complete contract. It is quite true that plaintiff 
failed to prove the allegation of its complaint that an agree- 
ment in writing was entered into by plaintiff and defendant 
on May 27, 1919. The agreement between the parties, if any, 
consisted of plaintiff's original order of May twenty-third 
and of defendant's letter of May twenty-seventh, with the 
oral acceptance thereof by plaintiff, with these modifications 
mutually agreed upon: (1) Defendant withdrew its condition 
that it would accept the order only on condition that its silk 
mill made deliveries and agreed to deliver without qualification; 
(2) plaintiff agreed to accept plain centers instead of box 
fronts. Thus the agreement as claimed to be made consisted 
of plaintiff's written order, defendant's written qualified 
acceptance, and the oral agreement based thereon, which 
removed all qualifications and made the contract complete. 
A definite offer in writing signed by a vendor is sufficient to 
charge him, even though the acceptance be by parol. ( Kohn & 
Baer v. Ariowitsch Co., Inc., 181 App. Div. 415.) But no ques- 
tion was raised at the trial of any variance between the 
pleading and the proof, and no motion to dismiss was made 
because plaintiff had failed to prove the agreement alleged in . 
its complaint. 

Upon plaintiff's proof, the defendant's requirement that 
the shirts be made with plain centers only was accepted by it. 
As to the provision inserted by defendant that the order, was 
accepted with the condition that it get deliveries from its silk 
mills, I think that a question was presented for the jury upon 
all the facts in the case as to whether the condition had not 
been waived or abandoned by defendant. These facts were: 
(1) The statement in the same letter and following this condi- 
tion, that " we will do all in our power to deliver this order as 
near complete .as possible; " (2) the statement by defendant 



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Bellas Hess & Co., Inc., t\ Alexander & Co., Inc. 317 

App. Div.] First Department, March, 1921. 

to plaintiff, " You will get those shirts ;" (3) the statement 
in the letter of May twenty-seventh, " These shirts are in 
process of making with the plain centers," which negatives 
the claim that any goods were still to come from the mill, 
so as to bring the contract even within the original condition, 
if it had not been waived. This is not a case of a written 
proposal, in which such elements as quantity, quality, price, 
time of delivery or terms of payment are sought to be modified 
by an oral agreement, which could not be done, since there 
would be left no written memorandum of the actual contract 
as made orally. It is a case where the party making the 
written memorandum inserted a condition on which the very 
existence of any binding agreement whatever depended, and 
that condition, it seems to me, such party could orally waive, 
particularly as he alone would know if it really were applicable 
to the existing situation. Here the seller had knowledge 
as to whether it had received (or would surely receive) the 
required silk from its mill to fill plaintiff's order. And if it 
knew the condition was in fact fulfilled, I think it could orally 
waive it as part of its memorandum, leaving all the essential 
elements of the contract in writing* 

Upon this record I am of the opinion, therefore, that a 
prima facie case had been made out of the meeting of the 
minds of the parties upon a complete contract. The letter 
of May twenty-ninth did not destroy the effect of Ridley's 
testimony in chief, whatever weight it might have with a 
jury in case his version of his conversation with Alexander 
should be denied by the latter. 

The judgment appealed from should be reversed and a new 
trial ordered, with costs to appellant to abide the event. 

Clarke, P. J., Laughlin, Merrell and Greenbaum, JJ., 
concur. 

Judgment reversed and new trial ordered, with costs to 
appellant to abide event. 



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318 Nauss v. Nauss Brothers Co. No. 1. 

First Department, March, 1921. [Vol. 195. 



Adam Natjss, Respondent, v. Nauss Brothers Company and 
Others, Defendants, Impleaded with Florence T. Hjlde- 
brand, as Executrix, etc., of Wendolin J. Nauss, Deceased, 
Appellant, and Charles E. Nauss, as Executor, etc., of 
/Wendolin J. Nauss, Deceased, Respondent. (Motion 
No. 1.) 

First Department, March 4, 1921. 

Corporations — action in equity by stockholder against corporation 
and executrix of stockholder to compel distribution of dividends 
and for other equitable relief — question presented on motion 
by executrix for judgment on pleadings — when equity will not 
direct declaration and distribution of dividends — coUusive aotion 
against corporation not shown — equity will not interfere to 
maintain status quo pending examination of books — executrix 
not necessary or proper party. 

In a suit in equity by a stockholder of a corporation against the corporation 
and the executrix of a stockholder for a decree requiring the corporation 
to declare and distribute dividends, enjoining its directors from further 
acting and for their removal, and for an accounting and the appointment 
of a receiver of the property pendente lite, in which the said executrix 
appeals from an order denying her motion for judgment on the pleadings, 
the question presented for decision is not merely whether a cause of 
action for any relief against her as executrix is stated but whether the 
complaint sufficiently shows a cause of action for any of the equitable 
relief demanded and whether she in her representative capacity is a 
necessary or proper party to the determination of the issues upon which 
plaintiff's right thereto depends. 

Whether dividends shall be declared out of the surplus earnings of a cor- 
poration, or whether the surplus shall be used to increase the business 
or retained for the security and stability of the business, is a matter 
which rests in the sound discretion of the directors, and unless it appears 
that they recognize the propriety of appropriating the surplus earnings 
to the payment of dividends, and the majority acting in bad faith toward 
the stockholders have refrained from so doing, the court will not intervene 
for the purpose of requiring the declaration and distribution of dividends. 

The complaint herein does not show that the directors of the defendant 
corporation recognized the propriety of declaring dividends, nor does it 
show a duty on the part of the directors to do so, and a mere general 
charge of bad faith is not sufficient. 

The allegations in the complaint as to the proceedings by the said executrix 
to recover against the corporation on certain promissory notes given 
by \t to her testator, to the effect that said action thereon was collu- 
rvely brought and the cause of action assigned to other stockholders for 



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Nauss v. Nauss Brothers Co. No. 1. 319 

App. Div.] First Department, March, 1921. 

the purpose of forcing the corporation out of existence, are not sufficient 
to entitle the plaintiff to any relief, for the allegations that the said action 
was collusively brought cannot avail inasmuch as the notes on which 
it was brought are not impeached, though the plaintiff* might have 
done so if that were the fact, since at the time they were given he was 
treasurer of the corporation and signed the notes as such, and moreover, 
so far as the appellant is concerned, she had assigned all interest in said 
cause of action and no relief is demanded or needed against her with 
respect thereto. 

A suit in equity cannot be maintained on the theory that it is necessary 
to maintain the status quo pending a mandamus proceeding instituted 
by the plaintiff for the inspection of the books of the company. 

On all the allegations in the complaint the appellant was neither a necessary 
nor proper party to the action and the complaint should have been 
dismissed as to her on her motion for judgment on the pleadings. 

Appeal by the defendant, Florence T. Hildebrand, as 
executrix, etc., from an order of the Supreme Court, made at 
the New York Special Term and entered in the office of the 
clerk of the county of New York on the 20th day of August, 
1920, denying said defendant's motion for judgment cm the 
pleadings dismissing the complaint. 

Joseph H. Kohan of counsel [Jerome Sterner with him on the 
brief; Petersen, Steiner A Kohan, attorneys], for the appellant. 

John C. Judge, for the plaintiff, respondent. 

Charles A. Winter, for the respondent Charles E. Nauss, as 
executor. 

Laughlin, J.: 

This is a suit in equity by a stockholder of the defendant 
Nauss Brothers Company for a decree requiring the company 
to declare and distribute dividends from its surplus assets, 
enjoining its directors and officers from further acting and 
for their removal, for an accounting of all the acts and doings 
of the company from its incorporation and directing that the 
surplus shown on such accounting be distributed among the 
stockholders, and for the appointment of a receiver of the 
property of the company pendente lite with authority to carry 
on its business. 

The complaint having been framed for equitable relief, the 
point presented for decision on appellant's motion was not 



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320 Nauss v. Nauss Brothers Co. No. 1. 

First Department, March, 1921. tVol. 1&5. 

merely whether a cause of action for any relief against her 
as executrix is stated but whether the complaint sufficiently 
shows a cause of action for any of the equitable relief demanded 
and whether she in her representative capacity is a necessary 
or a proper party to the determination of the issues upon 
which plaintiffs right thereto depends. (Travis v. Knox 
Terpezone Co., 165 App. Div. 156; affd., 215 N. Y. 259; 
Trotter v. IAsman, 209 id. 174.) The complaint shows that 
the company was incorporated in 1894 under the laws of New 
York with a capital stock of 1,000 shares of the par value of 
$100 each, for the purpose of buying, selling and trading in 
meats and domestic supplies incidental thereto; that its 
principal place of business was in the county of New York; 
that since 1894 plaintiff has been the owner of record of 88 
shares of the capital stock; that Wendolin J. Nauss was the 
president and a director of the company down to the year 
1907, when he made his son, Charles E. Nauss, president, but 
that, although not president, he remained in control of the 
corporation until his death in 1918; that the appellant became 
his executrix and his said son executor of his estate and they 
qualified and entered upon the discharge of their duties as 
such and are still so acting; that the plaintiff was the treasurer 
of the company; which had been doing a large and profitable 
business, but paid no dividends for twenty-one years prior 
to the death of Nauss, excepting possibly in the year 1910, 
although dividends could have been paid continuously each 
year if the decedent had so desired; that after the death 
of Nauss his executors " collusively " began an action in the 
Supreme Court, New York county, against the company on 
various notes which they claimed were outstanding, valid, 
legal obligations against it and conducted the action to a 
point where a judgment might have been taken against the 
company for upwards of $56,000, but that the judgment has 
not been entered; that "as part of said arrangement" (no 
arraAgement, however, having been thereinbefore referred to) 
the prospective judgment was purchased by the defendants 
Henry J. Hildebrand and Frederick Nauss " for the sole 
purpose of taking control " of the company " and doing with 
it what they saw fit, and at all times threatening and menacing 
the said corporation with the fact that if this plaintiff or any 



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NAtrss v. Nauss Brothers Co. No. 1. 321 



App. Dir.] First Department, March, 1921. 

other stockholder of the said corporation demanded his rights 
that said judgment would be put into execution and the 
corporation wiped out;" that "in the collusive arrangements 
that were made to take a judgment " against the company, 
the attorneys for the plaintiffs in that action sent this plaintiff, 
who was then the treasurer of the company, to a firm of 
attorneys designated by them, who had never represented 
the company and were unknown to him, saying: " These are 
the attorneys who will take charge of this friendly suit and 
will only charge $250 for it." The complaint does not show 
that the plaintiff employed said firm of attorneys to represent 
the company or to what extent the proceedings in that action 
progressed, excepting as may be inferred from the allegation 
that judgment may be entered therein against the company; 
and although the plaintiff was treasurer of the company and 
in a position to know the facts with respect to the notes, he 
neither alleges that they were or were not valid obligations 
of the company. He next alleges, evidently referring to the 
action on the notes, that the " proceedings were fictitious, 
collusive and not good in law" and that the existence "of 
the alleged obligations " against the company renders its 
financial status to be that of insolvency, while in truth and 
in fact it is a prosperous going concern and the plaintiff and 
the other stockholders should be receiving their profits by 
way of dividends and not be deprived of their rights " by the 
above and other acts illegal and unwarranted " by the true 
facts and circumstances; that if it can be proved " by the 
present holders thereof that the said alleged judgment is a 
good, valid and legal obligation " against the company, it 
should be paid or a settlement should be made and it should 
not be held as a menace " to continuously defeat the rights 
of this plaintiff and the other stockholders; " that if the 
company is unable to pay the judgment, then it is insolvent 
and has committed an act of bankruptcy and a receiver should 
be appointed, and if the judgment is not a good, valid and 
existing claim against the company, the officers and directors 
should have it set aside and declared null and void; that 
said Henry J. Hildebrand controls about 476 shares of the 
capital stock and he and the defendant Frederick Nauss, who 
App. Div.— Vol. CXCV. 21 



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322 Nauss v. Nauss Brothers Oo. No, 1. 

First Department, March, 1921. [Vol 195. 

is the president of the company, manage and control the 
corporation and that the defendants who are sued in their 
individual capacities are the other directors, and are hired 
clerks or journeymen butchers, employed in the business; 
that in 1907 when plaintiff was treasurer of the company, it 
was made clear at a meeting of the board of directors that the 
company was financially well able to pay a dividend and the 
matter was brought up at a meeting of the stockholders but 
that the decedent prevented the declaration of a dividend; 
that the business was continually increased to such an extent 
that one branch of it was enlarged from a single to a double 
store by the purchase by the decedent of an adjoining house 
and improving the same at a total cost of more than $45,000; 
that during the past ten years repeated demands were made 
on the decedent and on the company by stockholders, including 
plaintiff, for an inspection of the books of the company, but 
the demands were refused and the plaintiff was obliged to 
apply for a writ of mandamus and the proceeding is still 
pending, and the plaintiff fears that unless the holders of the 
judgment are enjoined they will make use of the judgment 
before the mandamus proceeding for an inspection . of the 
books by the plaintiff shall be terminated; that the plaintiff, 
in addition to being a stockholder and treasurer of the com- 
pany, was employed by it on a " weekly stipend/' until after the 
death of the decedent as a journeyman butcher and a buyer, 
and that it was definitely understood by an agreement with 
the decedent that he was to share in the profits of the business 
by dividends or interest on his stock, but that instead of this, 
decedent took most of the earnings for improvements, and 
when he died left an estate of upwards of $1,800,000, " most 
of wliich money was accumulated by him directly and indirectly 
from the defendant company, in which he was but an officer 
and stockholder, the same as this plaintiff; " that after the 
death of Nauss, defendants Frederick Nauss and Henry J. 
Hildebrand, owing to the fact that the plaintiff was demanding 
his rights in the company and refused to give them a voting 
proxy on his stock, ousted him from the company and dis- 
charged him from its employ and that his certificates of stock, 
which were in the possession of the executors of the decedent, 
were retained from him with a view to depriving him of the 



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Nauss v. Nauss Beothbbs Co. No, 1. 323 

App. Dir.] First Department, March, 1981. 

right to inspect the books, and he was obliged to bring a 
replevin action therefor; that the plaintiff fears that his rights 
and interest in the company are being jeopardized and that the 
holders of the judgment will make use thereof " for the purpose 
of forcing the defendant company out of existence" and, 
therefore, an injunction restraining them from so doing is 
necessary to protect the rights and interests of the plaintiff, and 
if insolvency exists a receiver should be appointed; that the 
plaintiff is informed and believes that "it would be readily 
easy " for the company at the present time to pay a dividend of 
twelve and one-half per cent upon its net earnings and that the 
profits of the company " are being unlawfully used by the said 
defendants Henry J. Hildebrand * * * and by Frederick 
Nauss;" that the judgment has been deliberately obtained 
" for the sole purpose of having a menacing control " over the 
company and its stockholders, and it continues to stand as 
a liability of the company, although the company is financially 
well able to pay it, and the purpose of so letting it stand is to 
cause the company and its stockholders to be powerless against 
the threats and doings of the defendants Henry J. Hildebrand 
and Frederick Nauss; that owing to the fact that the entire 
control of the company is in the hands of Nauss and Hildebrand, 
plaintiff cannot and is not allowed to have any voice or say 
in its management, and the officers and directors have a further 
plan and scheme fully to control, the company so that they 
may become possessed of it in their individual right at a much 
less price than its actual value, and for this reason no dividends 
are paid and the money and profits of the company are being 
stored up and reserved for the individual benefit of its officers 
and directors and are not now distributed to the stockholders 
for the reason that the officers and directors intend " to get 
the whole company for themselves and when that time arrives, 
to have all of the profits and assets held in reserve for them- 
selves ;" that the defendants have not acted in good faith 
with the plaintiff as a stockholder but have acted unreasonably 
and in bad faith and are still so doing and have deprived and 
are still depriving plaintiff as a stockholder of a reasqnable 
division of the surplus, well knowing that the company has 
surplus and profits which should be divided among the stock- 
holders; that the defendants are not acting honestly toward 



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324 Nauss v. Nauss Brothers Co. No. 1. 

First Department, March, 1921. [Vol. lift. 

the stockholders in the performance of their duties as directors 
as required by law and act with malice aforethought toward 
them and such acts are now proving to be and will continue 
to be disastrous to the holdings of the plaintiff and other 
stockholders and that no demand has been made on the com* 
pany to bring the suit for the reason that it would be 
ineffectual, since the defendants are its officers and directors 
in control of it. 

It is well settled that whether dividends shall be declared 
out of surplus earnings of a corporation, or whether the surplus 
shall be used to increase the business or retained for the 
stability and security of the business, is a matter which rests 
in the sound discretion of the board of directors, and unless 
it appears that they recognize the propriety of appropriating 
the surplus earnings to the payment of dividends, and the 
majority acting in bad faith toward the stockholders have 
refrained from so doing, the court will not intervene for the 
purpose of requiring the' declaration and distribution of 
dividends, (Hiscock v. Lacy, 9 Misc. Rep. 578, cited with 
approval in Reynolds v. Bank of ML Vernon, 6 App. Div. 62; 
affd., 168 N. Y. 740; WiUiams v. W. U. Tel Co., 93 id. 162; 
McNab v. McNab & Harlin Mfg. Co., 62 Hun, 18. See, also, 
Beveridge v. N. Y. E. R. R. Co., 112 N. Y. 1, 27; Miller v. Crown 
Perfumery Co., 125 App. Div. 881.) It sufficiently appears 
that there is an unfriendly, feeling and friction between the 
plaintiff and members of the board of directors who control 
the business of the company, and the complaint charges 
generally that the directors are acting in bad faith in refraining 
from declaring dividends, but it does not show that the 
directors recognize the. propriety of declaring dividends, and 
I think it fails to show a duty on the part of the board of 
directors to declare dividends. It is to be inferred from some 
of the allegations of the complaint that the solvency of the 
company may depend on the validity of the proceedings in 
the action in which judgment may be entered on the notes, 
and that the plaintiff does not know whether it is solvent or 
insolvent. He complains that earnings were used during the 
lifetime of the decedent for the extension of the business 
which he thinks should have been distributed as dividends; 
but manifestly he shows no facts sufficient to impeach the 



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Nauss v. Natos Brothers Co. No. 1. 325 

App. Div.] First Department, March, 1D81. 

action of those whose duty it was to determine the question. 
He charges that the existence "of the alleged obligations" 
against the company, by which presumably is meant the 
notes and status of the action brought thereon, renders the 
financial status of the company to be that of insolvency; 
and then .he alleges not that it is solvent but that it is a 
prosperous going concern and he and the other stockholders 
should be receiving dividends. After this, however, he alleges 
that if the company has been unable to pay the so-called 
judgment, if valid, then it is insolvent and a receiver should 
be appointed. These allegations impliedly admit that the 
plaintiff does not know whether or not the company is solvent; 
but if it be solvent, the facts shown are not sufficient to 
warrant a decree requiring the board of directors to declare 
a dividend. The complaint should have set out the facts 
with respect to the assets and liabilities of the company, 
showing the surplus, if any, and why it is not needed in the 
business. A prima facie right to dividends should be shown 
by setting forth the facts with respect to the financial condition 
of the company and to rebut the presumption arising from 
the failure of the board to declare dividends that the directors 
have honestly exercised their discretion by showing a state 
of facts tending to show that they could not, acting in good 
faith, have deemed it necessary to refrain from declaring 
dividends. It is insinuated in the complaint that the decedent 
derived some or all of his fortune directly or indirectly from 
the business but no facts are alleged tending to show that he 
acquired money or other property from the company without 
consideration or otherwise improperly. It is not sufficient 
merely to charge bad faith. 

The allegations of the complaint are insufficient to entitle 
plaintiff to any relief with respect to the proceedings in the 
action on the notes, and it will be seen that a temporary 
injunction with respect thereto is the most that is requested. 
It would seem that the plaintiff, having been treasurer of £he 
company until after the death of Nauss, is in a position to 
know whether or not the notes on which the action was 
brought were valid. It may be observed in this connection 
that it appears by the verified answer of Nauss as executor, 
which is in the record, that the decedent held twenty-two 



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326 Nauss v. Nauss Brothers Co. No. 1. 

First Department, March, 1921. [Vol. 195. 

notes of the company aggregating upwards of $104,000, and 
with the exception of one for $3,000 they were all signed by 
the plaintiff as treasurer of the company. The allegations 
that the action was collusively brought are of no avail inasmuch 
as the notes on which it was brought are not impeached. 
It is not material why the action was brought since it must 
be assumed that the notes were valid Moreover, so far as 
the appellant and her coexecutor are concerned, according 
to the allegations of the complaint, they have parted with all 
interest in the cause of action on the notes, and no relief is 
demanded or needed against them with respect thereto. The 
complaint teems with allegations of legal conclusions evidencing 
the opinion of the plaintiff in the premises, but it is quite 
barren with respect to allegations showing material and 
essential facts to warrant the intervention of a court of equity, 
which are misappropriation of funds, or losses through negli- 
gence of officers or directors, or fraud or bad faith or departure 
from charter powers. (McHenry v. Jewett, 90 N. Y. 58; 
Petty v. Emery, 96 App. Div. 35; Eppley v. Kennedy, 131 id. 1; 
O'Brien v. Fitzgerald, 6 id. 509; affd., on opinion below, 
150 N. Y. 572; People v. Equitable Life Assurance Society, 
124 App. Div. 714; Schwab v. Patter Co., 194 N. Y. 409.) The 
allegations that if the so-called judgment is valid, it ought to 
be paid or a settlement ought to be made with respect thereto, 
and that if it is not valid, it should be vacated, involve what 
are apparently sound business principles; but they afford no 
basis for determining that the directors have failed to perform 
their duties. It is not alleged that the directors have sufficient 
funds on hand with which to pay or settle for the claim referred 
to as a judgment. If it appeared that the company was well 
able to pay without the impairment of necessary working 
capital, and that those in charge of it were holding the claim 
over the company and in a position to enter judgment thereon 
at any time, there would be some merit in the action, but it 
is not shown that the company had sufficient funds available 
which could be spared for that purpose or that the claim was 
invalid. The only allegation with respect to the amount of 
the company's funds, other than the very general allegations, 
is the allegation on information and belief that the company 
at the present time could pay a dividend of over twelve and 



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Naubs v. Nauss Brothers Co. No. 1. 827 

App. Div.] First Department, March, 1991. 

one-half per cent on its net earnings but it is not otherwise 
shown that it had any net earnings. It is a reasonable inference 
that the allegation was made with respect to the financial 
condition of the company, not after but before the payment 
of the claim for 156,000. In so far as the allegations of the 
complaint tend to show that the action is brought to main- 
tain the status quo pending the mandamus proceeding for 
the inspection of the books of the ooinpany, it needs no argu- 
ment to show that a suit in equity cannot be maintained 
on such a theory. There is no allegation that the appellant's 
testator misappropriated any of the funds of the company 
or permitted their disbursement improperly; and no facts 
are alleged to sustain a right to an accounting against his 
personal representatives and such an accounting is not 
demanded unless possibly it may be said to be embraced in 
the general demand for an accounting of all the acts and 
doings of the company. We need not decide whether the 
allegations of the complaint sufficiently state a cause of action 
for equitable relief against any of the other defendants. We 
have only to decode whether the complaint tends to show a 
cause of action against any of them in equity to which the 
appellant is a necessary or a proper party. We have analyzed 
the complaint and commented thereon, not with a view to 
deciding whether any cause of action is stated, for that is not 
presented for decision, but only to point out that it states 
for the most part conclusions of law instead of facts and is 
most indefinite and why we think the appellant is not a 
necessary or a proper party. Charges are made against her 
testator for failing to pay dividends, but manifestly if dividends 
are to be declared, the right to have them declared depends 
upon the financial condition of the company now and not 
on its financial condition when the testator was in charge 
and the plaintiff acquiesced in his refusal to permit the 
declaration thereof, and in any event the decree of the court 
with respect thereto would run to the board of directors. 
The personal representatives of the testator are not directors ; 
and on the allegations of the complaint they have no interest 
in the so-called judgment. I am of opinion that if a cause 
of action in equity is sufficiently stated, appellant is neither 
a necessary nor a proper party. 



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328 Nauss v. Nauss Brothers Oo. No. 2; 

First Department, March, 102a. [Vol. 199. 

It follows that the order should be reversed, with ten dollars 
costs and disbursements, and motion granted, with ten dollars 
costs. 

Clarke, P. J., Dowling, Merrell and Greenbaum, JJ., 
concur. 

Order reversed, with ten dollars costs and disbursements, 
and motion granted, with ten dollars costs. 



Adam Nauss, Respondent, v. Nauss Brothers Company 
and Others, Defendants, Impleaded with Florence T. 
Hildebrand, as Executrix, etc., of Wenpolin J. Nauss, 
Deceased, Appellant, and Charles E. Nauss, as Executor, 
etc., of Wendolin J. Nauss, Deceased, Respondent. 
(Motion No. 2.) 

First Department, March 4, 1921. 

Pleadings — counterclaim not pleadable against codef endant which 
does not affect plaintiff nor relate to matters stated in complaint — 
one defendant cannot litigate independent cause of action with 
oodef endant — Code of Civil Prooedure, sections 621 and 1204, 
construed — defendant as to whom complaint dismissed cannot 
be retained to Utigate with codefendant. 

In a suit in equity by a stockholder of a corporation against the corporation 
and the executors of a deceased stockholder in which the complaint 
charges, among other things, that the appellant and her coexecutor 
collusively brought an action against the corporation on notes, claiming 
that they were valid obligations against it, pursuant to an arrangement 
whereby the judgment to be recovered was to be assigned to other 
defendants for the purpose of retaining control of said corporation; that 
said cause of action was assigned, and that judgment has not been 
entered; and that it is essential to the protection of plaintiff's interest 
that the holders of the alleged assigned cause of action be restrained from 
enforcing it, but no relief is prayed with respect thereto, a counterclaim 
interposed by one of the defendants, a coexecutor of the appellant, in an 
answer which was served on ail the other defendants, cannot be sustained, 
where the relief sought thereby is that the said judgment be increased, 
that the assignment thereof be set aside or the assignees directed to 
reassign on being reimbursed, that his coexecutrix be removed, and that 
the sale of certain stock held by his testator be set aside, since the said 
counterclaim is founded on matters not stated in the complaint and in 
no manner affecting the plaintiff. 



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Nauss v. Nauss Brother Co. No. 2. 329 

App. Div.] First Department, March, 1921. 

The provisions of sections 521 and 1204 of the Code of Civil Procedure, which 
authorize one defendant to serve an answer on anotbtt and demand the 
determination of his rights as against such oodef endant, do not authorize 
an independent litigation between the defendants to the subversion of 
the plaintiff's cause of action. 

Moreover, since the complaint herein was dismissed as against the appellant 
(See Nauss v. Nauss Brothers Co., No. 1, ante, p. 318), her coexecutor 
cannot be permitted to have her continued in the action to litigate matters 
with him which do not concern the plaintiff. 

Appeal by the defendant, Florence T. Hildebrand, as 
executrix, from an order of the Supreme Court, made at the 
New York Special Term and entered in the office of the cle* 
of the county of New York on the 20t\i day of August, 1920, 
denying her motion for judgment dismissing the counterclaim 
of Charles E. Nauss, as executor of the estate of Wendolin J. 
Nauss, deceased. 

Joseph H. Kohan of counsel [Jerome Steiner with him on 
the brief; Petersen, Steiner & Kohan, attorneys], for the 
appellant. 

John C. Judge, for the plaintiff, respondent. 

Charles A. Winter, for the respondent Charles E. Nauss, as 
executor. 

Laughlin, J.: 

We have analyzed and commented upon the complaint on 
an appeal by this appellant from an order denying her motion 
on the pleadings for judgment dismissing the complaint, 
which was argued and is decided herewith. (Nauss v. Nauss 
Brothers Co., No. 1, 195 App. Div. 318.) It is unneces- 
sary on this appeal to consider the allegations of the complaint 
beyond their relation to the counterclaim. It appears that 
the plaintiff, who for many years was a stockholder and the 
treasurer of the defendant company, instituted this suit as a 
stockholder for equitable relief. The complaint in substance 
charges, among other things, that the appellant and her coex- 
ecutor collusively brought an action against the company 
on certain promissory notes, claiming that they were valid 
obligations against it, pursuant to an arrangement by which 
the judgment to be recovered therein was to be assigned to 
the defendants Henry J. Hildebrand and Frederick Nauss for 



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330 Nauss v. Nauss Brothers Co. No. 2. 

First Department, March, 1921. [VoL 195. 

the sole purpose of enabling them to take control of the com- 
pany; that the plaintiff as treasurer of the company was 
induced by one of the attorneys for the plaintiffs therein to 
employ a particular firm of attorneys to represent the company 
on the theory that it was a friendly action; that the proceed- 
. ings in the action progressed to such a point that the plaintiffs 
were in a position to enter judgment against the company foi 
upwards of $56,000, but that instead of so doing they sold 
and assigned the cause of action to the defendants Frederick 
Nauss and Henry J. Hildebrand, who have not yet entered 
judgment. It is also alleged that it is essential to the protection 
of the plaintiff's rights that the holders of the assigned cause 
of action or claim, which notwithstanding the fact that 
judgment has not been entered, is referred to as a .judgment, 
should be enjoined and restrained from enforcing it, but no 
relief is prayed for with respect thereto. If it may be said 
that the complaint in any manner attacks the validity of the 
cause of action on the notes, at most it only questions whether 
the executors or their assigns are entitled to recover the 
amount for which it is alleged judgment may at any time be 
entered. Nauss as executor served his answer on the appellant. 
In it he pleads a counterclaim against the defendant company 
and the appellant and Frederick Nauss and Henry J. Hilde- 
brand, to whom she made the assignment, and prays that, 
among other things, the complaint be dismissed, with costs, 
and that the so-called judgment on the notes recovered by 
him and his coexecutrix and by them assigned to Henry J. 
Hildebrand and Frederick Nauss be increased to $104,582.62 
and that the assignment be set aside or that the assignees be 
directed to reassign on being reimbursed the amount they 
paid for the assignment and that the executrix be removed. 
The material facts on which the counterclaim is based are 
that he and his coexecutrix found among the assets of their 
testator twenty-two demand promissory notes of the defendant 
company, the dates and amounts of which are set forth; that 
the notes were duly made by the company and delivered to 
the decedent for value, consisting of moneys loaned and 
advanced and services rendered for the company and that all 
of the notes with the exception of one for $3,000 were signed 
for the company by the plaintiff as its treasurer; that he and 



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Nauss v. Nauss Brothers Co. No. 2. 331 

App. D\ v.] First Department, March, Mil. 

his coexecutrix brought an action on all of the notes and that 
one of their attorneys had been the personal counsel of the 
testator and the attorney and counsel for the- company since 
its organisation and was familiar with all of its affairs; that 
the company pleaded the Statute of Limitations with respect 
to the first thirteen of the notes, but that it had repeatedly 
admitted and acknowledged in writing its liability thereon 
within six years, and that said attorney, whose firm represented 
the plaintiffs in the action on the notes, was fully aware of 
the facts with respect thereto including the facts which would 
have defeated the plea of the Statute of Limitations, but that 
when the action came to trial, through collusion between 
this appellant and Henry J. Hildebnmd and Frederick Nauss 
and said attorney and the attorneys for the company, no 
effort was made to disprove the defense of the Statute of 
limitations and a verdict was directed in favor of the plaintiffs 
on only the last nine of the twenty-two notes, aggregating 
$44,943.20, and interest thereon, making in all $56,289.28; 
that the complaint was served on the plaintiff as such treasurer 
and he employed an attorney to appear for the company, who 
was selected by the attorneys for the plaintiff; that the 
plaintiff verified the answer and made an affidavit on which 
an order for the trial of the issues was obtained and the 
affidavit was false and suppressed the material facts known to 
the plaintiff with respect to the company's having so admitted 
its liability in writing and that the plaintiff was called as a 
witness on the trial to identify his signature on the notes but 
was not questioned with respect to said acknowledgment of 
the indebtedness by the company; that the testator owned 
£77 of the 766 shares of the stock of the company issued and 
outstanding, and the defendants Henry J. Hildebrand and 
Frederick Nauss were desirous of obtaining control of the 
company; that the appellant and said Frederick Nauss each 
took under the will of the testator a one-sixth interest in the 
stock and Frederick Nauss had theretofore acquired ten 
shares; that the stock was worth $25 per share; that after 
the verdict it was proposed and planned by the appellant and 
the attorney for the plaintiffs in the action, who had so repre- 
sented the corporation and the testator in the interest of the 
appellant's husband — meaning the defendant Henry J. 



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332 Nauss v. Nauss Bbothebs Co. No. 2. 

First Department, March, 1991. [Vol. 196. 

Hildebrand — and of the defendant Frederick Nauss that the 
stock be sold at public auction and that false information 
with respect to the term of the company's lease was given at 
the sale and no information with respect to its assets or the 
value of its trade name and good will was made public and 
no bidder excepting the appellant's husband appeared and the 
stock was sold to him for himself and Nauss at $1 per share 
and 481 5 /d shares were delivered to the purchasers, which gave 
them a majority control, and that thereupon Frederick Nauss 
was elected president and Henry J. Hildebrand was elected 
treasurer and vice-president and they were voted an annual 
salary of $5,000 each; that the value of the tangible assets of 
the company at that time was about $125,000 and its trade 
name and good will were worth at least $100,000 and the 
stock was worth $130 per share; that as part of the collusive 
arrangement concerning the sale of the stock, the verdict was 
assigned to the purchasers thereof and the proceeds of the 
sale were distributed to the beneficiaries under the will of 
the testator; that said defendant was not aware of the facts 
with respect to the collusion concerning the amount of the 
recovery on the notes and the sale of the stock and the assign- 
ment of the verdict and relied on the advice of his said 
attorney, who was secretly, knowingly and intentionally 
serving the interests of his clients, the defendants Frederick 
Nauss and Henry J. Hildebrand, at the expense of and to the 
great damage of the estate of the testator; that the defendant 
as executor on behalf of the estate, so far as he is able and 
capable of doing so, offers to return to the defendants Henry J. 
Hildebrand and Frederick Nauss the amount paid by them 
for the assignment of the verdict and stock; and that by 
reason of the premises the estate has been damaged in the 
sum of $100,000, and that said defendant has no adequate 
remedy at law. 

It will thus be seen that the counterclaim is founded on 
matters not stated in the complaint and in no manner affects 
the plaintiff. By the counterclaim it is sought to set aside 
the assignment of the verdict and the sale of the stock, the 
sale of which is not referred to in the complaint; and to have 
the executrix removed; but the validity of the verdict as 
tendered is not questioned and with respect thereto it is 



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Nauss v. Nauss Brothers Co. No. 2. 533 

App. Div.] First Department, Maiub, 1981. 

sought to have the amount of the recovery as had sustained 
and largely increased. Plainly plaintiff's theory, if any, with 
respect to the action on the notes is that there should be no 
recovery at all, whereas the theory of the counterclaim is 
that the amount for which judgment may be entered thereon 
is insufficient. Respondent does not join with the plaintiff 
in attempting to have the verdict reduced but stands upon 
the prospective judgment as authorized by the proceedings 
in the action and demands that it be increased. It is well 
settled that the provisions of sections 521 and 1204 of the 
Code of Civil Procedure, which authorize one defendant td 
serve an answer on another and demand the determination 
of his rights as against such codefendant, do not authorize 
an independent litigation between the defendants to the 
-subversion of the plaintiff's cause of action. (Smith v. Hilton, 
50 Hun, 236; Merchants' Nat Bank v. Snyder, 52 App. Div. 
606; affd., 170 N. Y. 565; Bliss v. Winters, 40 App. Div. 
622; Lansing v. Hadsall, 26 Hun, 619; Rafferty v. Williams, 
34 id. 544; New York Life Ins. & Trust Co. v. Cuthbert, 87 
id. 339; Kay v. Whittaker, 44 N. Y. 565, 576; Beldm v. Brown, 
77 Misc. Rep. 282.) Moreover, since we are dismissing the 
complaint as against the appellant, her coexecutor cannot 
be permitted to have her continued in the action to litigate 
matters with him which do not concern the plaintiff. (Laske v. 
Wolf, 154 App. Div. 233; Havana City R. Co. v. CebaOos, 49 
id. 421.) 

It follows that the order should be reversed, with ten dollars 
costs and disbursements, and appellant's motion for judgment 
dismissing the counterclaim granted, with ten dollars costs. 

Clarke, P. J., Dowlikg, Mbrbbll and Greenbatjm, JJ., 
concur. 

Order reversed, with ten * dollars costs and disbursements, 
and motion granted, with ten dollars costs. 



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334 Grunsick v. Schaefer & Son. 



Third Department, February, 1921. [Vol. 196. 



Before State' Industrial Commission, Respondent. 

In the Matter of the Claim of Andre ab Grunsick, 
Respondent, for Compensation under the Workmen's 
Compensation Law, v. Charles Schaefer & Son, 
Employer, and jEtna Life Insurance Company, Insurance 
Carrier, Appellants. 

Third Department, February 28, 1921. 

Workmen's Compensation Law — duration of disability — fliuHwg 
that claimant still disabled not supported by evidence — burden 
of proof — presumptions. 

Evidence examined, and held, that a finding that the claimant received 
injuries which caused him to be disabled from the 11th of July, 1919, " to- 
the 21st day of May, 1920, ou which date he was still disabled," was 
contrary to the established facts in the case. 

In the absence of evidence that the disabilities of the claimant persisted 
after the the 9th day of January, 1920, on which date the physician of 
the Commission reported, after examination, that the claimant should go 
to work, that date should be the outside limit of any award. 

The burden of establishing that the disability did not end with the 9th day 
of January, 1920, is upon the claimant, and the presumptions provided in 
section 21 of the Workmen's Compensation Law have no application. 

The mere fact that the claimant will not work while waiting for a large 
allowance does not justify the finding that the disability continues. 

Appeal by the defendants, Charles Schaefer & Son and 
another, from a decision and award of the State Industrial 
Commission, entered in the office of said Commission on the 
21st day of May, 1920. 

James B. Henney [William H. Faster of counsel], for the 
appellants. 

Charles D. Newton, Attorney-General [E. C. Aiken, Deputy 
Attorney-General, of counsel], for the respondents. 

Woodward, J.: 

The State Industrial Commission finds as conclusions of 
fact that " on July 11, 1919, while the said Andrew Grunsick 
was engaged in the regular course of his employment," he 
received injuries to his " lower spine and left shoulder, which 



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GRUN8ICK V. SCHAEFER A.80K 3J5 

- ' ' ' ■ ' I I .1 I . ■ | Ml II 

App. Div.] Third Deportment, February, 10*1. 

injuries caused him to be disabled from the 11th day of July, 

1919, to the 21st day of May, 1920, on which date he wa» 
still disabled." 

Compensation was paid upon this case until the sixth day 
of September. Dr. Lewy made an examination of this man 
for the Commission on the 1st of October, 1919, and then 
recommended that " claimant now attempt to resume work." 
On the 9th of January, 1920, he made a further examination 
and reported that " this claimant should resume work now." 
Still further reporting upon this case on the 20th of February, 

1920, Dr. Lewy declared, " This claimant should resume work 
at once," and on the nineteenth of March of the same year 
he again reported that " I find no organic nor functional defect 
in consequence of the injury, which prevents this man from 
resuming work," but he says he does find a cardiac defect 
which " may prevent this man from resuming laborious work," 
though he declares that " this is not due to the injury." The 
only evidence in contradiction of this testimony by the Com- 
mission's own physician is that of the claimant and his wife, 
both of whom say he cannot work, but without showing any 
intelligent reason why he may not do so, and the Jearned 
Attorney-General says in his brief that " the claimant seems 
to be holding out for a large sum of money, as he asks for 
$6,000," which is clearly the reason why he refuses to work. 

" The burden of establishing that the disability did not 
end with the 10th day of September, 1919," say this court in 
a very similar case (Chimora v. International Ice Cream Co., 
193 App. Div. 538, 539), " is upon the claimant; the presump- 
tions provided in section 21 of the Workmen's Compensation 
Law have no bearing upon this situation. (Matter of Modra v. 
Little, 223 N. Y. 452, 454.)" Here the medical testimony 
is wholly uncontradicted. The claimant's history of the case 
as given to Dr. Lewy does not prove out upon examination, 
and the mere fact that he will not work while waiting for 
an allowance of $6,000, does not justify the finding of the 
Commission that the disability continues. 

The award appealed from should be reversed and the 
matter remitted to the Commission to make an adjustment 
in harmony with the established facts in this case. On the 
9th of January, 1920, Dr. Lewy says " this claimant should 



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336 Steinv. Williams Printing Co. 

Third Department, February, 1921. [Vol. 106. 

resume work now/' and in the absence of evidence that the 
disabilities of the claimant persisted, this should be the 
outside limit of any award. 

All concur. 

Award reversed and matter remitted to the Commission 
to proceed in accordance with the opinion herein. 



Before State Industrial Commission, Respondent. 

In the Matter of the Claim of Joseph Stein, Respondent, for 
Compensation under the Workmen's Compensation Law, v. 
Williams Printing Company, Employer, and American 
Mutual Liability Insurance Company, Insurance 
Carrier, Appellants. 

Third Department, February 28, 1921. 

Workmen's Compensation Law — injury not arising out of and in 
course of employment — injuries received in fight initiated by 
claimant. 

A claimant does not receive injuries arising out of and in the oourae of his 
employment, where it appears that when a fellow-servant indulged in a 
little horseplay with the claimant by pulling at his blouse, the claimant 
attempted to strike the other with a milk bottle and, failing in that, 
attempted to bite him and then picked up a cobblestone, when the other 
servant, in self-protection, struck claimant causing the injuries which 
are the foundation for the claim. 

John M. Ksllogg, P. J., dissents. 

Appeal by the defendants, Williams Printing Company 
and another, from an award, order and decision of the State 
Industrial Commission, made on the 14th day of November, 
1919, allowing the claimant compensation at the rate of 
eleven dollars and fifty-four cents per week for the period 
of thirteen weeks, and continuing the case. 

Jeremiah F. Connor , for the appellants. 

Charles D. Newton, Attorney-General [E. C. Aiken, Deputy 
Attorney-General, of counsel], for the respondents. 



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Stein v. Williams Printing Co. 337 

App. Div.] Third Department, February, 1991. 

WoODWABD, J.: 

The State Industrial Commission, by a vote of three to 
two, has reached the conclusions of fact that Joseph Stein 
was employed as a porter by the Williams Printing Company 
in New York; that while engaged in his regular employment, 
on the 15th day of August, 1919, one Raymond Schults, a 
fellow-employee, pushed the claimant in a playful manner, 
which angered the claimant so as to cause him to attempt to 
strike the said Raymond Schults with a milk bottle. " In 
protecting himself, the said Raymond Schults took hold of 
the arm of the claimant, and after grappling with him caused 
him to release the hold on the milk bottle, and the claimant 
thereafter tried, while in the grasp of the said Raymond 
Schults, to bite the latter or strike him with a cobblestone 
which was near at hand. The said Raymond Schults -there- 
after struck the claimant, causing him to be thrown against 
a radiator, thereby injuring the left hand and arm of the 
claimant, knocking out four of his teeth and bruising his 
thigh, and causing the claimant to be disabled with traumatic 
neurosis from August 15, 1919, to November 14, 1919, on 
which date he was still disabled." 

In other words, a playful act on the part of Raymond 
Schults, a fellow-employee, induced the claimant to jnake a 
vicious assault with a milk bottle. The claimant himself 
testifies that he threw a milk bottle at Schults; Schults says 
that " I grabbed his blouse, I believe, and just pulled it, and 
I stayed there and he got sore, and he picked up a bottle and 
threw it. I ducked the bottle and grabbed him, and he tried 
to stoop, and he tried to bite my arm, I let him loose, and 
he picked up a cobblestone. I thought it was time to stop 
and I punched him." It was from this blow that the claimant 
was forced against the radiator, producing the injuries from 
which he suffers. While it is probably true that technically 
Schults made the initial assault in this particular instance, it 
appears that these men had been in the habit of going through 
more or less of horseplay, and there is no claim that Schults 
had any intention of doing anything more than had been 
customary. There was no such insulting conduct as in Matter 
of Verschleiser v. Stern & Son (229 N. Y. 192), nor any apparent 
App. Div.— Vol. CXCV. 22 



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338 Stein v. Williams Printing Co. 

Third Department, February, 1921. [Vol. 195. 

latent ill-will, and no reason, so far as appears, why Schults 
should have anticipated any trouble on account of his playful 
grabbing of the claimant's blouse. The claimant, on his part, 
appears not only to have made a vicious assault upon Schults, 
by the throwing of the milk bottle, but to have followed it 
with an effort to get hold of a cobblestone, after trying to 
bite Schults. It was while he was in this last act, and when 
the safety of Schults was fairly menaced, that the claim- 
ant received the blow which resulted in his injuries. The 
Workmen's Compensation Law provides for compensating 
injuries " arising out of and in the course of his employment, 
without regard to fault," on the part of the claimant, " except 
where the injury is occasioned by the willful intention of the' 
injured employee to bring about the injury or death of himself 
or of another " (§ 10), and the statute is to be read in connection 
with this exception. There can be no doubt that the claimant's 
injury resulted from his effort to injure Schults. He was not 
in any danger from Schults; no one suggests that the claimant 
had anything to fear from the horseplay of Schults, and it 
is not contended that this playful act was interfering with 
the discharge of any duty which the claimant owed to the 
employer. He appears to have suddenly changed his attitude 
of playfulness and to have left the service of the employer 
for the purpose of injuring Schults, and he received his injuries 
while following out that purpose, rather than any purpose 
of the master. The case, it seems to us, comes within the 
principle of StiUwagon v. Cdttan Brothers, Inc. (183 App. Div. 
141; affd. on opinion below, 224 N. Y. 714), and should follow 
the disposition made in that ease. 
The award appealed from should be reversed 

All concur, except John M. Kellogg, P. J., dissenting. 

Award reversed and claim dismissed. 



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Matter of Bossom. 339 



App. Div.] Third Department, February, 1021. 



In the Matter of the Probate of the Alleged Codicil of the 
Last Will and Testament of John Bossom, Deceased. 

Rosetta Kimball, Individually and as Executrix, etc., of 
John Bossom, Deceased, and John Bossom, Jr., Devisee 
and Legatee, Appellants; Henry John Bossom, Respondent. 

Third Department, February 28, 1921. 

Will* — probate — findings of lack of testamentary capacity and 
undue influence against weight of evidence — trial — contra- 
dicting party as witness — instruction that Jury might consider 
failure of proponent to oall doctor, third witness to will. 

In a proceeding for the probate of a will and a codicil thereto, held, that 
findings of the jury that at the time of the execution of the codicil the testator 
was not of sound mind, memory and understanding and that the execution 
of said codicil was not the testator's free, unrestrained and voluntary act, 
were against the weight of the evidence. 

A party to an action or proceeding who has gone on the stand may be 
contradicted and his credibility impaired by the evidence of witnesses 
called for that purpose without first putting the same question in form to 
the party. 

The charge that the jury might consider the failure of the proponent to call 
a doctor, the third witness to the will, while not reversible error, is subject 
to criticism in that the jury should not be permitted to get the impression 
that the failure to call such witness would be proof of insanity of the 
testator; they should know that the statute requires but two witnesses 
and also that contestant could call such witness without making him his 
witness. 

Appeal by Rosetta Kimball, individually and as executrix, 
etc., and another, from a decree of the Surrogate's Court of the 
county of Broome, entered in the office of said surrogate on 
the 2d day of July, 1920, denying probate to a codicil made 
by John Bossom, deceased, to his last will and testament, after 
a trial by a jury of controverted questions of fact raised by 
objections to the probate of said codicil, and also from an 
order entered in said surrogate's office on the same day deny- 
ing proponent's motion to set aside the verdict and for a new 
trial made upon the minutes. 



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340 Matter op Bossom. 



Third Department, February, 1981. [Vol. 106. 

George W. Eisenhart [H. D. Hinman of counsel], for the 
appellants. 

John Marcy, Jr. [Israel T. Deyo of counsel], for the 
respondent. 

Kiley, J.: 

John Bossom, a resident of Binghamton, Broome county, 
N. Y., on the 6th day of March, 1902, made his will; at that 
time his family consisted of his wife, Catherine Bossom, to 
whom he left the use of his property, real and personal, during 
the term of her natural life; a son, Adam, $5; a son, John 
Bossom, $500. He then provided that the balance of his 
property should be divided into four equal shares, and the 
terms of its disposition was provided in said will as follows: 
One of said equal shares to his said son John; one to his 
daughter, Rosetta Kimball; one to a grandson, Henry John 
Bossom, contestant herein, and son of a deceased son of the 
testator; and the remaining one-fourth share to his said son 
John, as trustee for the benefit of his son Jacob Bossom during 
his natural life, and if any remained of the trust estate, at 
the time of the death of Jacob, it was to be divided equally 
between the said John and Rosetta aforesaid. Jacob was 
an incompetent person. The testator thus named and provided 
for all of his direct descendants living and the only representar 
tive of the one who had died. This family was German; the 
testator and his wife were born in Germany. The thrift 
and decent frugality, characteristic of that race, had, through 
the years that had gone before, netted this testator a property, 
consisting in the main of improved real estate, which produced 
an income sufficient for the needs of himself and his wife. 
It will be observed that this will is orderly, evenly arranged, 
and the result of a scheme, thought out by the testator, or 
at least so arranged as to benefit those he was to leave behind 
him, in equal degrees. The evidence shows that the son 
Adam, who had left home early, had been advanced sufficient 
so that the testator felt he was no longer to be considered 
in the division of his estate. John, upon whom was to fall 
the burden of his incompetent brother, was given an extra 
$500. The point is not that I am now passing upon any 



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Matter of Bossom. 341 



App. Dlv.] Third Department, February, 1931. 

claim that John Bossom did not make this will nor that he 
was not competent to make one, but the observation is made 
here to call attention to its orderly and intelligent construction 
along lines that denote a formulated and well-considered 
plan. I regard this as essential, in view of the conclusion I 
have reached. There came a time in 1914 when John Bossom 
decided to make a dodicil to the will aforesaid. On May 28, 
1914, he executed and published that codicil: the change it 
makes in the will is indicated as follows: " Whereas in and 
by my last Will and Testament, I did, in the third division 
of the third clause of said will, among other things provide 
as follows: ' One other portion I give and devise to my grand* 
son, Henry John Bossom, of Syracuse, N. Y., to have and to 
hold the same for ever/ And whereas my said grandson, 
Henry John Bossom, has changed his mode of living since the 
making of said will, and seems to be in good circumstances 
and not particularly in need of funds, and whereas, my son, 
John Bossom, and my daughter, Rosetta Kimball, have 
remained in and about the City of Binghamton, New York, 
and have looked after and administered to the wants and 
comfort of myself and my wife, and rendered us valuable serv- 
ices without compensation, and I consider that said son and 
(laughter are deserving of greater consideration than the other 
of my children, my son, Adam Bossom, having had his share of 
my estate long ago, Now, Therefore/' etc. It must be evident 
from the record before us that these did people, both eighty years 
of age or thereabouts when this codicil was made, considered 
that this property which their undivided effort had accumu- 
lated belonged to them both, and Mrs. Bossom also made a 
will and a codicil thereto at the time the codicil in question 
was made. The wife, Catherine, died in July, 1914. John 
Bossom, the testator, died February 7, 1917. The will and 
codicil were presented for probate. The will was permitted 
to go to probate without objection. John Henry Bossom, 
the grandson, filed objections to the admission of the codicil 
to probate. Availing himself of the privilege conferred by 
section 2538 of the Code of Civil Procedure, he demanded a 
trial of the issues raised by his answer before a jury; an order 
to that effect was made and a trial was had. The issues 
tried were covered by six questions submitted to the jury, 



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342 Matter of Bossom. 



Third Department, February, 1931. [Vol. 195. 

which questions were agreed upon. A statement of these and 
the concessions made by the contestant's counsel after the 
judge's charge was delivered will show the issues without 
further quotation. First It was conceded that the evidence 
justified an affirmative finding that the paper writing dated 
May 28, 1914, purporting to be a codicil to the last will 
and testament of John Bossom, deceased, was subscribed at 
the end thereof by him. 

Second. It was conceded that the evidence justified an 
affirmative finding that said subscription by the testator, at 
the end of said codicil, was made by said testator in the 
presence of each of the other attesting witnesses and so 
acknowledged by him to said witnesses. 

Third. It was conceded that the evidence justified an 
affirmative finding that at the time of making such subscrip- 
tion the testator declared said instrument so subscribed to 
be a codicil to his last will and testament. 

Fourth. It was conceded that the evidence justified an 
affirmative finding that there were two attesting witnesses 
to said instrument, and that each of them signed his name 
at the end thereof at the request of the testator. 

On the concessions so made by contestant the jury were 
directed to find affirmatively on each of the four questions 
as set forth above. These concessions and affirmative findings 
are to the effect that this codicil was executed and published 
in a legal manner and in domplianoe with the statute of this 
State. (See Decedent Estate Law, § 21.) This suggests the 
question here, which must always be answered in the negative: 
Can an insane person do a sane act? Of course a legal aot is 
meant. However, passing that without answering it, the two 
other questions which were submitted to the jury and within 
the confines of which it was to consider the evidence, state all 
and the only issues raised by contestant's objections. They 
are as follows: " Fifth. Was the execution of said instrument 
by said testator his free, unrestrained and voluntary act? 
Sixth. Was the said testator at the time of the execution of 
said instrument of sound mind, memory and understanding? " 

Those last two questions were answered by the jury in the 
negative, and upon such finding the surrogate entered a decree 
in the surrogate's office of Broome county, N. Y., denying 



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Matter of Bossom. 343 



App. Div.] Third Department, February, 1021. 

probate to the codicil. The proponent appeals from such 
decree to this court, urging three grounds why it should not 
be permitted to stand: First That the finding of the jury is 
against the weight of evidence. Second. Error in the reception 
and rejection, and retention of evidence in the record. Third. 
Errors of the surrogate, prejudicial to proponent, when the 
case was submitted to the jury. Naturally, in the considera- 
tion of the questions submitted to the jury for its unlimited 
and undirected action, and upon which it found adversely 
to the proponent, the sixth question first suggests itself, viz. : 
Was this testator of sound mind, memory and understanding 
at the time he executed and published this codicil? We must 
start out with the understanding of the fact, crystallized into 
law, that the acts of the testator, with reference to the execution 
of the codicil, so far as covered by the first four questions 
submitted to the jury, were sane acts. This does not signify 
that such impetus as the affirmative holding on the first 
four questions may give to proponent's contention relieves 
them of difficulty; we must still consider the questions in the 
light of the evidence; and while it may be said, and practical 
experience and observation so advise us, that the fifth question 
is bound up with and involved, more or less, in the sixth. 
The rule is laid down for our guidance that " want of testa- 
mentary capacity and undue influence are distinct grounds 
on which a will may be impeached. One may be competent 
to make a will and yet under such restraint as to vitiate the 
instrument executed." (Chambers v. Chambers, 61 App. Div. 
299.) It should be borne in mind that less capacity is required 
to enable a man to make a valid will than to enter into and 
make other valid contracts. (Matter of Seagrist, 1 App. Div. 
615.) The reason for this rule is apparent ; the will is not a con- 
tract; it usually represents the last wish, if not act, of the one 
departing; if it is attacked he is not here to defend his act or 
give a reason for it, so the court said early, in Clapp v. FuU 
lertan (34 N. Y. 197) : " The right of a testator to dispose of 
his estate depends neither on the justice of his prejudices nor the 
soundness of his reasoning. He may do what he will with his 
own; and if there be no defect of testamentary capacity, and no 
undue influence or fraud, the law gives effect to his will, though 
its provisions are unreasonable and unjust." Later the same 



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344 Matter of Bossom. 



Third Department, February, 1921. [Vol. 195. 

doctrine was affirmed. " A man's testamentary disposition of 
his property is not invalidated because its provisions are 
unequal, or unjust, or the result of passion, or of other unworthy 
or unjustifiable sentiments. It is natural and, therefore, usual 
to mate provision for a child; but, under our governmental insti- 
tutions, no obligation to do so is imposed upon the parent, and 
the presumption of validity is not affected by the failure to do 
so, alone. Nor is the presumption in favor of a will overcome by 
showing that the testator was of advanced age, or of enfeebled 
condition of mind or body." (Dobie v. Armstrong, 160 N. Y. 
584.) To reach a correct conclusion on facts presenting the 
affirmative and the negative of conditions calling for such con- 
clusion, rules for the consideration and interpretation of evi- 
dence were early formulated. The shortest and best that I have 
been able to find is found in Delafield v. Parish (25 N. Y. 9) : 
" The testator [who] has sufficient capacity to comprehend per- 
fectly the condition of his property, his relations to the persons 
who were, or should, or might have been the objects of his 
bounty, and the scope and bearing of the provisions of his 
will," is a person of sound mind and memory within the mean- 
ing and intent of the Statute of Wills. The court charged, and 
contestant seems to rely on that rule as having been laid down 
by Judge Davibs in Delafield v. Parish (supra), that the 
proponent had the burden of proving competency of the 
testator. The surrogate in Dickie v. Van Vleck (5 Redf . 286) 
directs our attention to page 97 of the opinion (25 N. Y.) 
where a majority of the court concur in the statement that 
the legal presumption is that every man is compos mentis, 
and the burden of proof rests on the party who alleges the 
lack of it; that he who alleges it must prove it. Of course, 
the whole evidence must show the testamentary capacity, 
even when it is not alleged. The surrogate is required to 
satisfy himself of that fact; but that is different from the 
conditions that prevail when mental capacity is made an 
issue; then the old rule holds. The best way to take up the 
evidence-is as it was presented upon the trial. Under question 
6 what evidence did contestant present of lack of testa- 
mentary capacity? One of the physicians who had treated 
him down to a short time before making this will was called. 
He said testator was an old man and was suffering with senile 



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Mattsb of Bossom. 345 



App. Biv.] Third Department, February, 1031. 

dementia, which he said meant old age, or weakness incident 
to old age, hardening of the arteries, etc.; that on three 
occasions covering months of treatment he called at his office, 
several times in the night, and asked for medicine, which he (the 
doctor) had given hitaa on the first occasion. The doctor says 
he had it in his mouth; the evidence shows the doctor accused 
his patient of having the tablets in his mouth, but it does 
not warrant anything further, Testator told him he had 
lost them, and the doctor found them in has pocket; that he 
came in his slippers and bathrobe in the night. ■ I think the 
evidence shows that he never visited testator at his house 
but twice; that testator came to his office alone and unattended* 
except, the doctor says, a few times when a nurse came with 
him. This last is a mistake as it was shown by uncontradicted 
evidence that there was no nurse employed at testator's 
home. A woman worked there, Mrs. Bossom was sick, and 
the servant went to the doctor's office as and when directed 
by the testator. The intercourse between the physician and 
testator shows beyond cavil that the testator could not well 
be classed among insane persons. He settled his accounts, 
remembered from day to day the amount of his indebtedness 
and questioned charges that had escaped his memory; when 
he complained of pain he had pain and went to his physician 
for relief as often a«nd at whatever time of day or night he 
felt he wanted relief from that pain. He never lost his way 
in the night nor the day. This testimony appeals in the 
physician's evidence. I feel that his own evidence in favor 
of the testator rebuts and overwhelms any evidence he gave 
against him. The second doctor called by contestant was 
brief and decisive in his replies to questions. He had seen 
testator on the street for some time, off and on, before he called 
at his office. When he did call, he looked at his tongue, felt 
his pulse, and claims he could not get an intelligent answer 
to inquiries. The doctor pronounced his condition as one 
of insanity. He swears he made no further examination' 
upon which to base his conclusion; that such conclusion was 
based upon the observation he thus made on a few visits 
made to his office by the testator. Some features the doctor 
could see without examination, vis., that the man was in 
hi* late seventies or early eighties; that he panted, more op 



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346 Matter of JBossom. 



Third Department, February, 1031. [Vol. 196. 

less, from his exertion coming up to the second floor where 
his office was located; walked slowly, perhaps he was somewhat 
untidy; he did not answer questions readily. Two features 
present should not be overlooked, that this old man was a 
German and did not speak our language as fluently as others 
did; that he was at that time being treated by another 
physician for trouble in the head that pained him; he did not 
and probably did not intend to tell that fact to this physician; 
that he suffered pain and could not tell what it was nor its 
cause. The doctor's conclusion may be clear to his mind, but 
I must have the circumstances upon which it is based to a 
greater extent than here disclosed before I can reach the 
same conclusion. A lady testified that the testator called 
at one of his houses, then occupied by her, and said he was 
looking for his wife; this was after his wife died and some 
time after the will was made. The presumption does not follow 
that he was of unsound mind at the date previous when the 
will was made. Another lady testified about an occasion 
when she went to the house with her husband to rent a barn, 
and Mrs. Bossom said he was incapable of doing business, 
he was deaf and the lady says he did not hear what was said; 
it was not said in & loud voice. It cannot be concluded from 
that circumstance that he was insane. The other and only 
other incident calling for consideration, and advanced by 
contestant as a ground for disregarding this codicil, is what 
took place at the time instructions were given to the attorney 
for drawing the will. Mrs. Bossom said: " I want to give 
you all my property, I want to give it to you, and Mr. Bossom 
and I want to give it to you." He said: " Yes, we want 
to give you all our property, want to give it to you, and then 
when we are dead we want you to give it to Rosetta and 
John Bossom, Jr." In this proceeding one of the most sacred 
rights enjoyed by man in this nation, vk., the right to leave 
his property to those whom he wants to have it when he gets 
through, is assailed. He is not here to meet the assault. The 
most common instincts of intelligence and humanity suggest 
that a fair construction be given to what he did say ; a construc- 
tion that is logical, that makes for good rather than bad sense. 
To that end the fair construction of the position of the evidence 
quoted is had, if there is inserted after the words " I want to 



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Matter of Bossom. 347 



App. Wv.] Third Department, February, 1931. 

give you/' the words " a list of." Such was what was meant, 
such was what was understood between the parties present. 
The evidence on the part of the proponent shows a picture 
not unfamiliar in the daily walks of life. This German man 
and wife with a family, raised in frugality! reaches manhood 
and womanhood; all leave home but two, Rosetta and John, Jr. 
A third is stricken and is housed in an institution in or near 
his home city. In 1902 this testator, weighing from 160 
to 180 pounds, must have been a strong man, about sixty- 
eight years old, strong still with the confidence of youth; 
after seventy the decline must have been more rapid; he was 
living on the income from his property in these last years 
of his life; aside from his wife, there were but two that he 
could turn to in his joys and his sorrows, his son and his 
daughter; they had grown old with him; as they grew older 
together the circle of interest narrowed; they were thrown 
more upon, and became more dependent on each other. 
Mrs. Bossom was older than the testator; she became less 
strong, more often requiring increasing care. Only this son 
and daughter, outside of the servant hired in 1914) made 
them intimate companions. During all of these years the 
testator collected his rents, attended to taxes, repairs on his 
property, banked his money himself, drew it out as needed, 
kept his own accounts, paid his bills as they accrued, purchased 
the necessaries for the home, food, wood, everything needed 
in the household, helped care for his sick wife, wound clocks, 
filled stoves, carried out the ashes, went where duty^or inclina- 
tion called him unattended, conserved his resources. When a 
bill or charge seemed to him exorbitant, he said so, they had 
to show him; when the attorney charged him ten dollars for 
drawing the papers at the time of the execution of the will, he 
told him it was too much, that it was all he had, and requested 
back a dollar, and got it; when being examined for a truss he 
inquired the expense, met it; all of this continued for years 
before, at the time of the execution of the will, and after until 
his last illness in 1917. There seems to be no change except 
such as a steady growing old produces; its effect varies on 
different people. I am struck with'the ready significance of 
the remark of Judge Rappau> in Brick v. Brick (66 N. Y. 144) : 
" It would be indeed strange that a person should have the 



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348 MATTEfc OF B08SOM. 



Third Department, February, 1921. {Vol 19& 

capacity to acquire a large fortune by his personal industry 
and intelligence, and from causes existing at the same time 
be held not to have sufficient mental capacity to dispose of 
it by will." The learned surrogate charged that the proponent 
had the burden of proof on the question of testamentary 
capacity; proponent seems to have acquiesced. That is not 
the law, except in the light to which I have hereinbefore 
referred. {Buchanan v. Betsey, 65 App. Div. 58.) Taking 
either way here, the result must be the same. Contestant urges 
that lack of testamentary capacity can be predicated upon 
the fact that he was a natural object of testator's bounty, 
being a grandepn, and, therefore, this codicil offends against 
the rule laid down in Delafield v. Parish (supra). All that 
case holds is that testator must know who is or might be the 
objects of his bounty; not that he must leave such persons 
his property; he may substitute the objects of his affection 
for the natural objects of his bounty; that is what was done 
in this case to the extent of changing the provision as to the 
contestant. Why not? Testator had not seen much of this 
man since he was a small boy. He was young and vigorous, 
holding a steady position. On the other hand, those who 
became closer with each passing hour were growing old with 
him. They were natural objects of his bounty in a nearer 
degree than contestant; in addition they were objects of 
his affection. I am satisfied that the verdict of the jury 
on the sixth question was error; that the evidence does 
not justify the finding that the testator was of unsound mind 
and memory when the codicil was executed, (Horn v. Pull- 
man, 72 N. Y. 269; Cheney v. Price, 90 Hun, 238; Calr 
Ugan v. Haskell, 143 App. Div. 574.) The fifth question, was 
the will the unrestrained and voluntary act of the testator, 
was answered in the negative by the jury. The restriction 
upon voluntary action is charged against the son and daughter, 
John, Jr., and Rosetta Kimball. It is urged that the lapse 
of time from making the will until the codicil was made 
indicates that influence was exerted to bring it about. That 
may be considered, but is not even presumptive. The evi- 
dence of any acts of undue influence is meager if not totally 
absent. The circumstantial evidence relied upon is the long 
and close relation and communication between father, mother, 



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MATTUii of BoesoM. 349 



App. DiT.] Third Deportment, February, 1901. 

eon and daughter; the fact that the daughter, the mother 
and the father were together when a servant heard conversa- 
tion about the contestant, to the effect that he had money, 
wore diamonds, was in the burlesque show business and had 
too much to do with women, and that testator said he should 
not have any of his money for that reason. It will be observed 
that this grandson did not have. much in common with his 
old grandfather, and the fact that after he heard of the 
change in his grandmother's will he brought a stranger from 
New York to find out if he could what his grandfather had 
done of like nature with his will, indicates that his interest 
was not based wholly on affection springing from relationship. 
It was none of his business what the grandfather did with his 
own so long as he did that act freely and it was not the result 
of misrepresentation, deceitfully or mahoiously nopde. The 
evidence does not warrant the holding that the attitude of 
the testator was the result of deceit maliciously practiced 
upon him by his son and daughter, nor does it justify the 
finding that the knowledge he had of the things he criticised 
can be traced to the son and daughter. Contestant admitted 
that he wore a diamond when he was at his grandfather's, 
that he told him that he was in the theater business, and 
from his own evidence it does appear that he had a lady 
there with him from New York. None of these matters are 
reprehensible, none of them indicate a lack of absolute respecta- 
bility, none of them convince one that the life and living of 
this young man were not above reproach. The grandfather 
was undoubtedly mistaken in his conception of what those 
things may denote; from his knowledge of the theatrical 
business he undoubtedly caught the impression, common with 
many younger than he, that theatrical business meant easy 
money for'little work, with a flavor to its operation, calculated 
to appeal to the lower curiosity of the masses; again the 
dress or undress of the performers, as he had observed them, 
did not appeal to his moderate, conservative nature. He 
had a right to entertain such a conception from anything he 
saw or heard, provided that conception was not the result 
of practiced fraud and deceit. The evidence in this record 
in that regard " is nebulous and when subjected to a scientific 
test, yields little in the way of positive content." The con- 



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350 Mattbb of Bossoh. 



Third Department, February, 1801. [Vol. 185. 

elusion reached by the jury on question 5, submitted to 
them, cannot be sustained. It is against the weight of 
evidence. Undue influence must be proved; it cannot be 
assumed. (Loder v. Whdpley, 111 N. Y. 239, 250; Rintelen v. 
Schaefer, 158 App. Div. 477; Matter of Murphy, 41 id. 153.) 
In Matter of Donohue (97 App. Div. 205) the court says: " We 
should hesitate to find that undue influence has been practiced, 
* * * where a will is fair and reasonable, according to 
the common instincts of mankind, and such as might, with pro- 
priety and justice, be made by a decedent." (Matter of Sulli- 
van, 229 N. Y. 440.) A present constraint must be shown; it 
cannot be surmised. (Ivison v. Ivism, 80 App. Div. 599; Mat- 
ter of Mondorf, 110 N. Y. 450.) Such constraint must over- 
power the will of the testator. (Matter of Snelling, 136 N. Y. 
515.) A person may use reasonable and legitimate argument; 
the undue influence must amount to coercion and duress. 
(Smith v. Keller, 205 N. Y. 39.) Having reached the conclu- 
sion that the decree of the learned surrogate and the verdict of 
the jury must be reversed, I could, with propriety, stop here. 
However, in view of the position taken by the attorneys in 
their briefs and by the learned surrogate, a few suggestions 
are not out of order. A party to an action or proceeding who 
has gone upon the stand may be contradicted, and his credi- 
bility impaired, by the evidence of witnesses called for that 
purpose, without first putting the same question (in form) 
to the party. The legatees named in the will could not testify 
upon this trial to any conversation or transaction involving 
a communication with the testator. (Matter of Kindberg, 
207 N. Y. 220; Grimold v. Hart, 205 id. 384.) Many of the 
motions made by proponent to strike out evidence were subject 
to the criticism that appears in People v. Chacon (102 N. Y. 
669). The charge of the learned surrogate that* the jury 
might consider the failure of the proponent to call Dr. Knight, 
the third witness to the will, and duly excepted to, would not, 
in a case otherwise unassailable, reverse the verdict; however, 
such request and charge stand upon a different ground from 
that in other cases. The jury should not be permitted to get 
the impression that the failure to call such witness would be 
proof of insanity of the testator; they should know that the 
statute requires but two witnesses and also that contestant 



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Levtne t\ Comm. of Pubuo Works of City of Hudson. 351 

App. Div.] Third Department, February, lftW. 

could call such witness without making him his witness. 
(Becker v. Koch, 104 N. Y. 304.) Again, in the interest 
of justice both to the contestant and proponent, the learned 
surrogate could forestall such a situation, which might be 
extremely dangerous to a righteous party, by calling or insisting 
that the witness be called. The surrogate, in the last analysis, 
must determine whether the will shall be probated or not. 
(Code Civ. Proc. § 2614.) 

The findings of the jury on questions 5 and 6 are dis- 
approved, and the decree of the surrogate reversed and a 
new trial granted, with costs to abide the event. 

All concur. 

Decree of the surrogate reversed and new trial granted, 
with costs to appellant to abide event. The court disapproves 
of findings of fact numbered 5 and 6. 



Max Levtne, Appellant, v. The Commission of Public 
Works of the City of Hudson, N. Y., and Others, 
Respondents. 

Third Department, February 28, 1021. 

Municipal corporations — suit in equity to set aside assessment 
by city of Hudson for street curbing constructed under contract 
with State Commission of Highways — waiter of defects in pro- 
cedure — compliance with city charter requiring commission of 
public works to give grades to abutting owners — right of abutting 
owners to raise question of jurisdiction when called on to pay 
assessment. 

Where, while a resolution of the commission of public works of the city of 
Hudson, adopted pursuant to the provisions of the city charter, as amended, 
and directing owners of lots upon certain streets to set new curbing, was 
in effect, the city, claiming to act under section 137 of the Highway Law, 
entered into an agreement with the State Commission of Highways to 
pay for the curbing upon the streets named, to be constructed in connec- 
tion with an improved highway thereon, abutting lot owners who stood 
by and saw the street curbing constructed by the State without making 
objection, will be deemed to have waived any technical defects in the 
procedure and to have so far estopped themselves as to make it improper 
for a court of equity to give relief by setting aside an assessment levied 
by the city for the cost of the curbing. 



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352 Levink v. Comm. of Public Works of City of Hudson. 



Third Department, February, 1921. [Vol. 195. 

The commission of public works had the right to adopt the grade of the 
engineers doing the State work and the record Hied in its office was a suffi- 
cient compliance with the law requiring the said commission to give grades 
to abutting owners so that they might construct the curbing themselves. 

While the system of financing adopted by the city seems to be of doubtful 
validity, still as there was no bad faith and some of the owners have 
acquiesced and paid their assessments and the others may raise the ques- 
tion of jurisdiction when called on to pay, the assessment should not be 
set aside. 

Appeal by the plaintiff, Max Levine, from a judgment of 
the Supreme Court in favor of the defendants, entered in the 
office of the clerk of the county of Columbia on the 4th day of 
August, 1919, upon the decision of the court, rendered after a 
trial without a jury, dismissing the complaint. 

CrandeU & Graf [John L. CrandeU of counsel], for the 
appellant. 

James J. Brennan, for the respondents. 

Woodward, J.: 

The plaintiff seeks to maintain an action in equity on behatf 
of himself and all others similarly situated to set aside an 
assessment for a public work in the city of Hudson. It is 
somewhat difficult to understand the theory of the action, 
for the complaint is largely devoted to telling what the law is 
supposed to be, with very little reference to the equities. So 
far as we are able to discover, the commission of public works 
of the city of Hudson has attempted to levy an assessment upon 
the abutting owners of property upon certain streets in that 
city to pay for the cost of placing curbing, under the pro- 
visions of section 173 of the city charter (Laws of 1895, chap. 
751, as amd. by Laws of 1905, chap. 559), and it is the 
contention of the plaintiff, one of such abutting owners, 
that the contract having been let for the doing of this work 
in connection with a development of the State highway system, 
under the provisions of section 137 of the Highway Law (as 
amd. by Laws of 1913, chap. 319),* the local commission of 
public works was without jurisdiction to make such assessment. 

Assuming that this is true, and that the local commission 
did not have jurisdiction to make this assessment, it does not 

* Since amd. by Laws of 1916, chap. 571. — [Rkp. 

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Levins v. Comm. op Pi/blic Works of City of Hudson. 353 

App. Div.] Third Department, February, 1921. 

ne